Astro Tool & Die Corp.

National Labor Relations Board - Board Decisions

Apr 18, 1996

320 N.L.R.B. 1157 (N.L.R.B. 1996)

1157
320 NLRB No. 153
ASTRO TOOL & DIE CORP.
1 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.
In agreeing with the judge that the Respondent violated Sec.
8(a)(3) and (1) by discharging employee Pamela Adams, we find it
unnecessary to rely on the judge’s discussion of the degree of dis-
cipline appropriate for the conduct that the Respondent asserts was
the basis for her discharge. The judge found, and we agree, that the
Respondent’s September 29, 1993 warning letter to Adams violated
Sec. 8(a)(1). We find merit in the General Counsel’s exception to
the judge’s failure to find that the warning letter also violated Sec.
8(a)(3). In this regard, we note that the judge found that the Septem-
ber 29 letter was motivated not only by Adams’ protected concerted
activities but also by her union activities. It is well established that
the issuance of a formal disciplinary warning letter for discrimina-
tory reasons violates Sec. 8(a)(3).
2 The judge inadvertently failed to include in his recommended
Order language requiring the Respondent to cease and desist from
issuing discriminatory disciplinary warnings to its employees. Ac-
cordingly, we shall modify the Order and substitute a new notice.
Astro Tool & Die Corporation and Pamela D.
Adams. Case 30–CA–12338
April 18, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On August 16, 1995, Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief and
the General Counsel filed cross-exceptions and an an-
swering 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 exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 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, Astro
Tool & Die Corporation, Cudahy, Wisconsin, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 1(b).
‘‘(b) Discouraging union or protected concerted ac-
tivity by discriminatorily terminating or issuing dis-
criminatory disciplinary warnings to its employees or
in any other manner discriminating against them with
regard to their tenure or activities.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interfere with, restrain, or coerce em-
ployees in the exercise of rights guaranteed by Section
7 of the Act by prohibiting them from talking to fellow
employees about working conditions, by instructing
them that complaints about working conditions must
be directed solely to management, and by threatening
employees with discharge for engaging in protected
concerted activities.
WE WILL NOT discourage union or protected con-
certed activity by discriminatorily terminating or
issuing discriminatory disciplinary warnings to our em-
ployees or in any other manner discriminating against
them with regard to their tenure or activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Pamela D. Adams immediate and
full reinstatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other rights
or privileges previously enjoyed and WE WILL make
her whole for any loss of earnings and other benefits
resulting from her discharge, less any net interim earn-
ings, plus interest.
WE WILL notify Pamela D. Adams that we have re-
moved from our files any reference to her September
29, 1993 warning and discharge on October 25, 1993,
and that the warning and discharge will not be used
against her in any way.
ASTRO TOOL & DIE CORPORATION
Joyce Ann Seiser, Esq., for the General Counsel.1
Michael E. Geary, Esq., of Milwaukee, Wisconsin, for the
Respondent.
1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter referred to as the General Counsel.
2 Hereinafter referred to as Adams.
3 Hereinafter referred to as Astro, Respondent, or the Company.
4 Hereinafter referred to as the Act.
5 Documents offered into evidence by the General Counsel and the
Respondent are referred to as G.C. Exh. and R. Exh. respectively,
followed by the appropriate exhibit number. References to the tran-
script are cited as transcript followed by the relevant page number.
6 Tadeyeske was fired; Heinick was demoted and soon left Re-
spondent’s employ.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon a charge
filed on November 15, 1993, by Pamela D. Adams,2 a com-
plaint issued on January 24, 1994, alleging that Respondent,
Astro Tool & Die Corporation,3 threatened to discharge and
subsequently did discharge Adams in violation of Section
8(a)(1) and (3) of the National Labor Relations Act.4 The
Respondent filed a timely answer denying the complaint’s
substantive allegations.
This case was tried on October 17 and 18, 1994, in Mil-
waukee, Wisconsin, at which time both parties had an oppor-
tunity to examine and cross-examine witnesses, introduce
documentary evidence, and argue orally.5 On the evidence
presented in this proceeding and my observation of the wit-
nesses’ demeanor, and after consideration of the parties’
posttrial briefs, I reach the following
I. FINDINGS OF FACT
A. Jurisdiction
At all material times, Respondent, a corporation with an
office and place of business in Cudahy, Wisconsin (the facil-
ity), has been engaged in the business of fabricating tool, die,
and metal stamping. During the calendar year ending Decem-
ber 31, 1992, in the course of conducting its business oper-
ations, purchased and received goods and materials valued in
excess of $50,000 directly from suppliers outside the State
of Wisconsin. Based on this evidence, the complaint alleges,
Respondent admits, and I find that Astro Tool & Die is en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
B. Alleged Unfair Labor Practices
1. Adams’ complaints about working conditions
Pamela Adams began working for Respondent on May 18,
1992, as a parts inspector. Thereafter, she was trained to as-
semble parts and operate punch presses.
At the start of Adams’ career with Respondent, Astro’s
management, other than President Hans Lorenzen and his
son, Plant Manager Elmer Lorenzen, included Shop Super-
visor Ralph Heinick, Press and Assembly Room Supervisor
Keith Tadeyeske, and Tool Room Supervisor Jim Biermann.
Adams testified that under this structure, employees enjoyed
a fair degree of flexibility in their work: they were permitted
to transfer from one job to another during the course of the
day with their supervisors’ consent, assemble boxes in the
shipping department for use at their own workstations, move
pallets with a forklift truck or handcart, and obtain parts
from the shipping department or warehouse.
Adams maintained that these liberal shop practices ceased
early in August, when Tadeyeske and Heinick were removed
as supervisors and Biermann was promoted to plant fore-
man.6 As Adams put it, when Biermann took over ‘‘our re-
sponsibilities were basically stripped.’’ Employees no longer
had the discretion to assemble boxes, move pallets, or fetch
tools. Adams most begrudged the loss of communication.
Before Biermann’s promotion, employees could present sug-
gestions about improving job performance to their super-
visors. If the idea seemed reasonable, they often granted the
employee approval to proceed. In contrast, Biermann simply
dictated how work was to be accomplished and did not toler-
ate proposals about trying new methods.
Adams soon began to discuss what she viewed as
Biermann’s rigid operating methods with her fellow workers,
sharing her concerns about Biermann’s strict approach to
their work. After several weeks, Adams tried to present her
complaints to management. One morning as Elmer Lorenzen
was passing her workstation, Adams told him that she want-
ed to speak to him on behalf of herself and other employees
about the changing practices at the facility. Lorenzen insisted
that she should speak only for herself and reproached her for
putting words into the mouths of other employees. Startled
at his response, Adams felt that further conversation with the
younger Lorenzen would be pointless. Afterwards, she relat-
ed her experience with Lorenzen to coworkers Catherine
Lomis, Jim Blair, Jennifer Norton, and Pat McGeary.
Adams further testified that in January she began to expe-
rience physical discomfort in her wrists that a physician diag-
nosed as carpal tunnel syndrome and tendonitis. When she
told Tadeyeske and Heinick about her problem, they assured
her that if she told them when she was in pain, they would
transfer her to another job.
Adams found Biermann was far less sympathetic to her
malady. On August 11, she was assigned to a task involving
highly repetitive small hand movements. Adams related that
after working on this task for 6 or 7 hours, she asked
Biermann if he would transfer her to another task because of
the pain she was experiencing. He refused and said if she did
not like it there, she could leave. Angered by his callousness,
Adams walked out muttering, ‘‘I work my ass off for noth-
ing.’’ (Tr. at 57.) Biermann summoned her back to his office,
asking if she had anything more to say. She stated that she
told him she was unhappy and in pain and again asked to
be shifted to another job, but Biermann still refused to ac-
cede to her request. Having no choice, she returned in tears
to the work she had been doing. When other employees
asked what had happened, she told them about this latest ex-
change with Biermann.
Adams returned to her physician, reporting that she could
continue performing any job at Astro as long as it was not
for an extended period of time. The doctor then wrote a let-
ter dated August 26 to President Lorenzen in which she con-
firmed her diagnosis of Adams’ physical ailments and rec-
ommended that she not perform certain repetitive tasks for
more than prescribed periods of time during the next 4
months. Adams’ made sure this letter was in Biermann’s
hands and discussed its contents with some of her fellow
workers.
1159ASTRO TOOL & DIE CORP.
7 Drake’s advice probably was well taken in light of Respondent’s
opposition to union representation as expressed in its employee man-
ual. (G.C. Exh. 2 at 1.)
8 Twenty-nine rank-and-file employees’ names are listed on G.C.
Exh. 21. Additional names on the list, marked by a dash, are those
of management officials. 9 Unless otherwise noted, all events took place in 1993.
Biermann’s account of his August 1 encounter with
Adams differs from hers in one salient respect: he acknowl-
edged that while Adams asked to be assigned to another ma-
chine, she said nothing about pain in her wrist, only that she
was tired of performing the same task all day. Within a half-
hour of their exchange, Biermann penned a brief memo to
the files that is consistent with his version of the matter. He
further testified that at the time, he had no knowledge that
Adams had any medical restriction on her work or that she
was having difficulty with her wrist. He acknowledged that
she later told him that her wrists were sore, whereupon he
suggested she see a doctor. He subsequently received the
physician’s report described above. After that, Biermann stat-
ed that whenever Adams complained of wrist pain, he would
permit her to change jobs as long as she had been working
on a job which was one of those noted in the doctor’s letter.
2. Adams’ attempts to obtain union representation
Several weeks after Biermann became plant foreman,
Adams initiated an effort to obtain union representation. She
first broached the idea with coworker Jim Blair who sug-
gested she contact the United Steelworkers. Blair made it
clear, however, that he wanted no part of organizing activity
and said that if his name surfaced in that context, he would
deny involvement. She also spoke with other employees
about the pros and cons of union representation.
Sometime in mid-August, Adams contacted the Steel-
workers. When Union Representative Douglas Drake re-
turned her call, she told him about what she viewed as ad-
verse working conditions in the plant. She also told him that
although other employees were disgruntled, they were too
fearful to take corrective action. Drake then cautioned her to
keep a low profile and asked her to compile a list of her co-
workers’ names so that he could contact them to assess their
interest in union representation.7 Pursuant to his request,
Adams copied the employees’ names from their timecards
during her lunchbreak. One of two timecard boxes in the
plant was situated close to a table where a group of employ-
ees regularly ate lunch with Biermann whose office was
nearby. Before giving the list to Drake, Adams placed an
‘‘X’’ before the names of six coworkers whom she thought
might favor a union and a circled ‘‘X’’ before the names of
those who had expressed interest to her.8
When Adams submitted the list to Drake, he explained he
would use it to contact employees to determine whether there
was sufficient interest to proceed. A day or two after meeting
with him, Adams discussed the Union with four of her co-
workers, but only two—Catherine Lomis and Chris Mor-
gan—expressed any enthusiasm.
Adams believed that she spoke to Drake again sometime
in late August, but he placed their next contact in early Sep-
tember. Whatever the exact date may have been, they agreed
on the contents of their discussion: Drake advised Adams
that he was having difficulty in reaching employees; he ei-
ther did not have their telephone numbers, or the numbers
he had were wrong. Drake added that none of the employees
whom he did reach was willing to involve him or herself in
an organizing campaign. At the hearing, he was unable to re-
member the names of those with whom he spoke, having
erased them from his computer before he knew the matter
was in litigation. However, he and Adams both agreed that
there was insufficient interest in representation at that time.
Adams thought she next spoke with the union agent after her
discharge. Drake, however, believed that he next heard from
the National Labor Relations Board’s Regional Office advis-
ing him that an unfair labor practice charge had been filed.
3. Adams’ employment record
Respondent awarded Adams three raises during the course
of her employment: the first one was for 50 cents an hour
at the end of her probationary period and two more were at
25 cents per hour in March and July. This last increase came
soon after Adams wrote to both Lorenzens requesting a raise
in light of her improved attendance record and efforts to as-
sume new responsibilities.
However, Adams was less than a perfect employee. Her
employment record is punctuated by disciplinary warnings,
the first three of which she conceded were warranted.
Adams received the first written warning for tardiness on
two occasions during her first 2 weeks of employment and
was told that another violation during her probationary pe-
riod, which was extended, would mean immediate discharge.
The second written warning came on March 11, 1993.9 Ob-
serving her removing parts and scraps from a press by hand,
Tadeyeske cautioned her to use a safety handle magnet for
her own protection and said he did not want to see her hands
in the machine again. Nevertheless, an hour later, he again
saw Adams removing material by hand. This time, he gave
her a written warning.
A month later, Adams received a third warning for a sec-
ond safety infraction. On this occasion, Tadeyeske found her
operating a press without the safety lights on, contrary to in-
structions. He warned her that she could be killed if she
worked without them; yet, later that day, noting that she had
turned the lights off again, he gave her another written warn-
ing.
Adams’ next warning 3 months later involved an incident
that she said occurred on a Saturday, August 14. Adams ex-
plained that she was assigned to pack parts that day for a
‘‘hot job,’’ that is, one which had to be ready for shipment
by Monday morning. Finding that a box she was using was
not adequately assembled, she testified that she first went
through proper channels to obtain a new box from the appro-
priate shipping department supervisor, Chris Tessmer. When
he complained that he was too busy to assist her, and with
top management away from the plant that day, Adams rem-
edied the problem herself by using a staple gun located in
the shipping department less than 30 feet away from her
workstation. Adams stated that her sojourn to the shipping
department took no longer than a minute. Nevertheless, ship-
ping employee Sue Barmen, the plant foreman’s sister, ob-
jected to her entry there.
Adams said she was paged to Biermann’s office the fol-
lowing Monday where he handed her a written warning for
‘‘UNAUTHORIZED ABSENCE FROM WORK AREA.’’
1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 There is no dispute that Respondent made a practice of tape-re-
cording all disciplinary meetings, including Biermann’s August 17
session with Adams.
11 Lorenzen testified that he asked Respondent’s counsel to review
the letter before he released it to Adams. During the disciplinary
meeting, counsel telephoned Lorenzen who indicated that Adams
was in his office at the time.
(G.C. Exh. 6.) She tried to explain the circumstances but
Biermann refused to listen to her. Adams signed the warning
under protest, adding the following written comment:
I was waiting for more parts to do my process. As
I was waiting for part [sic] I need 2 stables [sic] in my
box and went with box to Shipping. Sue informed me
that I was not allowed to so I asked Chris. I was trying
to keep busy and use good judgment.
Ibid.10 Visibly upset and in tears after this episode, Adams
described the incident to some of her fellow workers.
Biermann supplied a somewhat different picture of this
episode. First, he placed Adams’ misconduct on Monday,
August 16, not August 14, as she alleged. In fact, Biermann
maintained that August 14 was the date on which he met
with the employees to expressly instruct them they were not
to leave their workstations to obtain supplies or assemble
boxes at the shipping department, since it interfered with
production. Instead, they were directed to rely on shipping
department staff to perform those tasks. He and the
Lorenzens were away from the plant on Monday, August 16,
but on his return, he learned from his sister that Adams ig-
nored his order and entered the shipping department to as-
semble her own box. He called her to account the following
day, August 17.
Catherine Lomis, called by the Respondent to testify about
Adams’ conduct, did not paint a flattering portrait of her fel-
low employee. She described Adams as a shirker who wrote
letters and took frequent restroom breaks rather than work-
ing. Lomis also said that Adams complained about every-
thing but was unable to remember the subject matter of her
invective. Contrary to Adams’ belief that Lomis was support-
ive of the Union, she asserted that ‘‘if there was a union in
Astro Tool and Die I would quit.’’ (Tr. 180.)
Lomis denied telling anyone in management about Adams’
interest in the Union. However, she did tell the Lorenzens
about remarks Adams made sometime in August when she
returned to her workstation in an agitated state, possibly be-
cause she just had received a disciplinary notice. At first,
Lomis took the comments humorously, but later thought they
might be menacing, and therefore, reported that Adams said
she
‘‘going to blow Elmer’s head off,’’ and then she said,
‘‘No; I can’t do that. He’s not worth spending the rest
of my life in jail’’ . . . . And then she says, ‘‘What
I’m going to do is take a forklift and drive it through
his office’’ . . . . [T]hen she mentioned something
about a swastika. [Tr. at 181.]
Adams admitted that she talked to fellow workers about
personal as well as work-related problems while on the job;
that is, until she received her next warning on September 29.
She conceded, for example, that she complained about Re-
spondent’s unfairness in refusing to consider her father for
employment because of a purported anti-nepotism policy;
yet, several weeks later, found that the Company had hired
the mother of another employee. She also admitted saying
she would like to drive a forklift through Elmer Lorenzen’s
new office, and that they, employees, were being treated as
if they were in a concentration camp. However, she denied
threatening to shoot Lorenzen, as Lomis claimed. Adams
said that it was Lomis who facetiously told someone not to
give her a gun because she would shoot Lorenzen. At this,
Adams commented that it would not be worth it. Further,
Adams could not recall having referred to painting swastikas
on office windows.
Lomis was not the only employee to relay Adams’ com-
ments to management. On August 20, Respondent’s presi-
dent, Lorenzen, asked another employee, Pat McGeary
whether he had heard Adams allude to a gun. McGeary had
not, but disclosed that Adams had remarked, ‘‘I was wonder-
ing how Hans and Elmer would feel—how pissed off they
get if I bring in the union here.’’ (Tr. 200.)
On the same day that McGeary told him this, Lorenzen
transmitted a handwritten memo by fax to the Company’s at-
torney outlining what Lomis reported and also that another
employee ‘‘mentioned that she is trying to get the Union in
here.’’ (G.C. Exh. 8.) Additionally, Lorenzen wrote that
‘‘She’s always complaining of the type of job that is given
to her’’ and was claiming that she acquired carpal tunnel
syndrome while working for Astro, when he understood she
had the ailment before Respondent hired her. Lorenzen ended
his memo by pointing out that Adams had a number of dis-
ciplinary warnings and then opined, ‘‘I think she has a men-
tal condition.’’ (G.C. Exh. 8.) Lorenzen accompanied his
memo with a cover note to counsel that read inter alia: ‘‘We
have to do something before it gets out of hand. She is noth-
ing but trouble. Please help.’’ (G.C. Exh. 7.) On cross-exam-
ination, Lorenzen acknowledged that he told his son about
Adams’ union comment and believes he also mentioned it to
Biermann sometime thereafter. However, Biermann claimed
to know nothing about Adams’ union activity until after she
was discharged.
Adams testified that a month later, Lorenzen and
Biermann summoned her to the office where they told her
to keep her mouth shut and do her job. Lorenzen than gave
her a letter dated September 29, over his signature, which
stated:
It has come to our attention from multiple sources
that you are doing a lot of complaining about Astro
Tool & Die.
We have employed you to do your job and not to
complain to other coworkers about things that you dis-
like here. As we have told you before, your complain-
ing should only be directed at management and not at
your coworkers.
Maybe it would be better if you find other employ-
ment. This is your very last warning. [G.C. Exh. 10.]11
Respondent explained that this meeting came about after
a new employee, Steven Diedrich, approached Biermann on
September 29, his first day of employment, and asked if
Adams always spent her time complaining about the Com-
pany.
1161ASTRO TOOL & DIE CORP.
12 In his brief, the General Counsel moved to amend the complaint
to allege a violatation of Johnnie’s Poultry Co., 146 NLRB 770
(1964); when it was disclosed during cross-examination of several
witnesses that Respondent’s counsel had questioned them in prepara-
tion for the instant hearing without assuring them that they would
suffer no reprisals for their testimony. Technically speaking, the wit-
nesses should have had the protections afforded by Johnnie’s Poul-
try. However, the General Counsel’s motion to amend, raised for the
first time in brief, is wholly untimely. Moreover, the forthright,
unpressured testimony of the few witnesses who were deprived of
the Johnnie’s Poultry assurances, convince me that they felt under
no obligation to testify on behalf of their employer with or without
such guarantees. Therefore, the General Counsel’s motion to amend
the complaint, to allege that Respondent violated Sec. 8(a)(1) by
failing to comply with one aspect of Johnnie’s Poultry, is hereby de-
nied.
13 Remanded sub nom. Prill v. NLRB, 755 F.2d 941 (D.C. Cir.
1985), cert. denied 474 U.S. 48 (1985), reaffd. 281 NLRB 882
(1986), enfd. sub nom. Prill v. NLRB, 835 F.2d 1481 (D.C. Cir.
1987), cert. denied 487 U.S. 1205 (1988).
Adams testified that she took Respondent’s warning to
heart and, thereafter, kept to herself and refrained from talk-
ing to her coworkers. Nevertheless, her career at Astro ended
on October 25. She testified that while inspecting parts, she
broke one nail while other nails became frayed. Fearing she
would scratch the parts with her uneven nails, she filed a few
of them, which she claimed took no more than ‘‘a few min-
utes.’’ (Tr. 111.) She then explained that the filing occurred
intermittently over a period of time that day. She would in-
spect parts, then file a broken or frayed nail, then return to
inspecting parts. She noticed Biermann near her workstation
at one point, but he said nothing to her at the time.
In the early afternoon, Biermann summoned Adams to his
office and fired her, telling her he had observed her filing
her nails, that she was the worst employee he had ever seen,
and did the least amount of work she could get away with.
Adams testified that he refused to discuss the matter with her
and, she, in turn, refused to sign the disciplinary form he had
prepared. When she started toward Elmer Lorenzen’s office
to ask that he reconsider her discharge, Biermann, implied it
would be pointless, since he already had approved the action.
Lomis and Biermann offered views of Adams’ conduct on
this date that differed materially from her own account.
Lomis testified that while she was working, Adams wasted
time on the morning of October 25, writing a letter and filing
her nails. Growing increasingly angry at working hard while
Adams attended to personal matters, Lomis finally com-
plained to Biermann. He then went to the shop floor and
watched Adams filing all her nails for 8 to 10 minutes. As
he walked past her, she hid her nail file and returned to
work. When he later called Adams into his office and told
her he had observed her filing her nails, she asserted that she
was simply filing one broken nail.
II. DISCUSSION AND CONCLUDING FINDINGS
A. The Standard of Proof
The complaint alleges and the General Counsel contends
that Respondent twice violated Section 8(a)(3) and (1) of the
Act by threatening Adams with discharge on September 29,
and discharged her less than a month later on October 25,
because of management’s fear she would introduce a union
into the plant and its irritation with her criticisms of manage-
ment.12 The Respondent denies these allegations, arguing
that Adams’ misconduct, not antiunion bias, motivated the
disciplinary actions taken against her.
This is a close case. Both parties introduced evidence that
support their theories and undermine the positions taken by
their counterparts. Both argue that the witnesses who testified
in their respective cases-in-chief are more credible than those
presented by opposing counsel. In cases like this, where
proof of motivation and credibility often is elusive, it is nec-
essary to evaluate the evidence in accordance with the bur-
den-shifting test of causation adopted by the Board in Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982).
Under Wright Line, the Government bears the burden of
presenting evidence sufficient to support a prima facie case.
To this end, the General Counsel must establish by a prepon-
derance of the evidence that the alleged discriminatee was
engaged in concerted, protected activity, that the employer
knew of that activity and discriminated against the employee
because of it. The Respondent contends that the General
Counsel has failed to meet even its initial burden of proving
that Adams was engaged in concerted activity.
In order to determine whether an individual employee’s
activity is concerted, the Board requires that:
[I]t be engaged in with or on the authority of other em-
ployees, and not solely by and on behalf of the em-
ployee himself. Once the activity is found to be con-
certed, an 8(a)(1) violation will be found if . . . the
employer knew of the concerted nature of the employ-
ee’s activity, the concerted activity was protected by the
Act, and the adverse employment action at issue (e.g.
discharge) was motivated by the employee’s protected
concerted activity. [Fns. omitted.]
Meyers Industries, 268 NLRB 493, 497 (1984).13
Elaborating on its decision in Meyers (Meyers I), the
Board explained on remand that ‘‘[t]he definition of con-
certed activities . . . requires some linkage to group action.’’
Meyers II, supra, 281 NLRB at 884. However, the Board rec-
ognized that ‘‘concerted activity could include some, but not
all individual activity’’ as long as ‘‘the employee acts as a
representative of at least one other employee.’’ Id. at 884,
885. On applying the foregoing principles to the evidence
presented here, I conclude that the General Counsel met her
burden.
B. The General Counsel Established a
Prima Facie Case
The record clearly shows that Adams was a chronic com-
plainer whose complaints occasionally were of a personal na-
ture. However, more often than not, she also discussed con-
cerns with her fellow workers bearing on matters pertaining
to the quality and methods of supervision and the treatment
of employees in the plant. Specifically, she railed against
Biermann’s management practices, particularly his refusal to
communicate, to permit employees to propose alternative
methods to perform certain tasks and to rotate from one job
to another during the day, as they had under other super-
visors. Even her remarks about Respondent’s failure to em-
1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Adams admitted telling Lomis it would not be worth her while
to shoot Lorenzen. However, she maintained that it was Lomis who
first alluded to using a gun. Adams seemed far more capable of
making a flippant comment like this than did Lomis, but it hardly
matters who is responsible because clearly it was said in a jocular
fashion. No one could possibly take the remark seriously when
placed in context. Adams probably did refer to painting swastikas on
windows because this was consistent with her accusing Respondent
of treating the employees as if they were in a concentration camp.
Moreover, she presented herself as a person who would not hesitate
to make outrageous statements solely for their shock value.
15 Respondent failed to explain why Lorenzen wrote in his memo
to the company attorney that Adams was ‘‘trying to get the Union
in here,’’ when he testified that the employee, McGeary, reported
that she merely had wondered if Respondent would be irritated if
she sought union representation. Logic suggests that McGeary had
to have said something more about Adams’ union activity that what
either he or Lorenzen recalled at trial.
ploy her father, or Biermann’s lack of concern about her
wrist pain, take on a quality of concerted activity when
viewed as complaints about Respondent’s managerial poli-
cies. Although Respondent produced two employee witnesses
who offered information about Adams that presented her in
a bad light, neither contradicted her testimony that others in
the plant shared her negative views about various manage-
ment practices.
Board precedent firmly establishes that complaints about
the quality of supervision, such as Adams’, are directly relat-
ed to working conditions. As such, they fall within the rubric
of protected concerted activity. See, e.g., Brother Industries,
314 NLRB 1218 (1994); Hoytuck Corp., 285 NLRB 904 fn.
3 (1987); Calvin D. Johnson Nursing Home, 261 NLRB 289
fn. 2 (1982) (see also cases cited there), enfd. 753 F.2d 1078
(7th Cir. 1985).
Further, it is undisputed that when Adams approached the
younger Lorenzen to discuss various complaints, she assured
him that she was appealing not only for herself but also on
behalf of others. In other words, she was attempting to
‘‘bring group complaints to the attention of management, un-
derscoring the concertedness of her activity.’’ Meyers II,
supra at 538.
Lorenzen admitted that he refused to listen to Adams
when she told him she was serving as a spokesperson for
other employees, telling her flatly that she should speak sole-
ly for herself. In a disciplinary note dated September 29, Re-
spondent gave Adams a final warning, on pain of discharge,
‘‘not to complain to other coworkers about things that you
dislike here.’’ (G.C. Exh. 10.)
Respondent asserts that no proof was adduced that other
employees shared Adams’ views. While several of her co-
workers who testified in this proceeding expressed opposition
or disinterest in union representation, none of them contra-
dicted Adams about Biermann’s managerial methods. Thus,
her testimony that she attempted to present complaints on be-
half of herself and others was uncontested. It is ironic that
Respondent should claim that Adams was not engaged in
concerted activity when it admittedly prevented her from
raising group concerns. Respondent may not rely on its own
censorship to defeat a finding that in discussing supervisory
shortcomings with her fellow employees, and attempting to
broach these problems with management, Adams was en-
gaged in protected concerted activity.
A memo written by Hans Lorenzen on August 20 provides
unassailable evidence that Respondent knew that Adams was
engaged in union activity. The memo describes the problems
which Respondent had with Adams. The first item concerned
a number of reckless statements Adams made to Lomis on
August 16. Lomis reported these remarks to Lorenzen later
the same day, conceding that she first found them amusing,
and only subsequently thought they were troubling enough to
report.14 Lorenzen could not have taken them too seriously
either since he failed to take any action about them when
first reported and waited 4 days before mentioning them to
his attorney.
Lorenzen confirmed that on August 20, an employee told
him that Adams had wondered aloud whether her bosses
would be irritated if she brought a union into the shop. He
did not take 4 days to react to this information. That same
day he prepared a memo and telecopied it to corporate coun-
sel stating, inter alia, that Adams ‘‘is trying to get the union
in here.’’15 His assumption that Adams was not engaged in
idle musing, and his haste in transmitting this information to
counsel on the very day it was received, with a somewhat
desperate cover note stating, ‘‘We have to do something be-
fore it gets out of hand,’’ gives rise to an inference that
Adams’ union activity played a major role in Respondent’s
decision to rid itself of an employee whom Lorenzen de-
scribed as ‘‘nothing but trouble.’’ (G.C. Exh. 7.)
The circumstances attending Respondent’s final warning to
Adams on September 29 also support an inference that Re-
spondent was laying the groundwork for her discharge. The
warning was triggered by a new employee’s offhand com-
ment to Biermann that Adams was ‘‘doing a lot of complain-
ing about Astro Tool & Die.’’ Of course, Respondent’s offi-
cials could have handled the matter in any number of ways.
Biermann could have ignored it, as he apparently ignored
Adams’ foolish comments which Lomis reported to Lorenzen
on August 16. He could have attempted to counter her argu-
ments by addressing them head on. He also could have
issued a disciplinary notice himself, as he had on an earlier
occasion, particularly since he was the one to whom the new
employee complained, or he could have suspended her. In-
stead, he escalated the matter by bringing Adams’ conduct
to the attention of the company president.
Beirmann denied knowing about Adams’ union activity at
the time of this incident. However, President Lorenzen was
fairly certain he told Biermann about Adams ‘‘trying to get
a union in here,’’ shortly after he found this out himself on
August 20. It is difficult, even impossible, to imagine that
Lorenzen would have failed to convey this fact to his plant
foreman when it was important enough to include in a letter
to his attorney. It is equally unlikely that Biermann would
have transferred a disciplinary matter to Lorenzen without a
specific and compelling reason for doing so; that is, knowl-
edge that Lorenzen had decided to fire her. Biermann’s claim
that he had no knowledge of Adams’ union activity until
after her discharge is implausible. This was not a plant where
employees discreetly withheld information from their super-
visors. For instance, Biermann disclosed that he learned of
Adams’ dissatisfaction with his management decisions
through the grapevine. In fact, his effort to deny knowing of
Adams’ interest in union representation compels the conclu-
sion that it was a significant, if not decisive, factor motivat-
ing his conduct toward her.
1163ASTRO TOOL & DIE CORP.
In unprecedented fashion, Hans Lorenzen, who was
semiretired and was not involved in day-to-day management
or supervision at the plant, conducted an investigation into
Adams’ activity by questioning other employees. Even more
remarkable, Lorenzen sent the disciplinary warning to coun-
sel for review before returning it to Biermann to present to
Adams. Respondent evidently exercised special caution be-
fore issuing this memo, investing it with an importance that
was not attached to other warnings given before her union
activity became known. Lorenzen’s written instruction to
Adams that she should direct her complaints to management,
not to her coworkers, violates Section 8(a)(1) on its face by
interfering with her right to engage in protected concerted
activity. His concluding paragraph suggesting that she should
quit Respondent’s employ and that ‘‘[t]his is your very last
warning’’ indicates that she had no future at Astro as long
as she continued to complain about working conditions. The
manner in which this disciplinary memo was handled and the
message it conveyed suggests that Respondent was strength-
ening a paper trail intended to lead to Adams’ discharge.
Respondent argues that Adams was not engaged in respon-
sible discussion of problems of general concern but in indi-
vidual griping. In taking this position, Respondent misappre-
hends the nature of concerted activity as that term of art is
defined in Board and court precedent. For example, in
Jeannette Corp., 217 NLRB 653 (1975), enfd. 532 F.2d 916
(3d Cir. 1976), the administrative law judge cited Mushroom
Transportation Co. v. NLRB, 330 F.2d 683, 685 (3d Cir.
1964), wherein the court explained that ‘‘[t]o qualify as con-
certed, protected activity,’’ the employee must be engaged in
conduct ‘‘with the object of initiating or inducing or prepar-
ing for group action or . . . [have] some relation to group
action in the interest of employees.’’ The court went even
further in giving an expansive reading to the concept of con-
certed activity:
[P]reliminary discussions are [not] disqualified as con-
certed activities merely because they have not resulted
in organized action or in positive steps toward present-
ing demands. ‘‘. . . [i]nasmuch as almost any con-
certed activity for mutual aid and protection has to start
with some kind of communication between individuals
it would come very near to nullifying the rights of or-
ganization . . . if such communications are denied pro-
tection because of lack of fruition.’’
Id. at 685. To the same effect, in R. J. Liberto, Inc. 235
NLRB 1450 (1978), the administrative law judge, with Board
affirmance, aptly reasoned that
[w]hether [the employee’s] facts or interpretation were
correct, he was entitled to discuss with his fellow em-
ployees his perception of working conditions and em-
ployee problems. Respondent, to be sure had a right to
try to counter his arguments, but it had no right to at-
tempt to muzzle his discussions with fellow employees
of issues relating to their working conditions.
Respondent did not challenge Adams’ contention that she
kept a low profile after receiving Lorenzen’s warning. Never-
theless, 3 weeks later, she provided her employer with an op-
portunity to fire her as if it were a legitimate response to her
misconduct. However, since that warning was given for ille-
gitimate reasons, it follows that the subsequent discharge that
relied on it also was unlawful.
The immediate cause assigned for Adams’ discharge was
that she filed her nails on company time. Biermann did not
specifically refute Adams’ claim that other employees had
taken time for personal grooming at their workstations. In-
stead, he asserted that he never before had seen an employee
engaged in improper behavior while at work. Experience
alone compels me to discredit such an unrealistic assertion.
Having found that the Respondent’s previous warning to
Adams was wrongfully issued because it was triggered by
displeasure with her union proclivities, and intended to stifle
her from engaging in discussions critical of Respondent’s
management style and methods, it follows that a decision to
discharge her, based on such flawed underpinnings, cannot
be upheld.
In light of the foregoing discussion, I conclude that the
General Counsel adduced sufficient evidence to meet each of
the elements required to establish a prima facie case that Re-
spondent issued a disciplinary warning, and then terminated
Adams because of its animus to her union proclivities and
involvement in protected, concerted activities. Accordingly,
under Wright Line, the burden shifted to Respondent to prove
by a preponderance of the evidence that it would have dis-
ciplined and terminated Adams even if she had not engaged
in conduct. protected by the Act. Wright Line, supra.
C. Respondent Failed to Meet its Wright Line Burden
Undoubtedly, Adams occasionally supplied her employer
with grounds to issue disciplinary notices that had nothing to
do with conduct protected by the Act. I refer specifically to
the warning notices that preceded the August 20 date when
Lorenzen clearly had knowledge that Adams was in some
way engaged in union activity. The nice question here is
whether Respondent would have issued a warning notice on
September 29 and terminated her on October 25 in the ab-
sence of animus toward her protected concerted activity. Al-
though not altogether free from doubt, I conclude that she
would not have been disciplined on September 29, or fired
less than a month thereafter were it not for Respondent’s ani-
mus to her union and other protected concerted activity.
Prior to August 20, when Company President Lorenzen
wrote to Respondent’s counsel with some alarm, that Adams
was ‘‘trying to get a union in here,’’ she had three justifiable
disciplinary notices in her personnel file, none of which ap-
pear to have been prompted by discriminatory motives. Thus,
the only warning notices that Adams received after Respond-
ent learned of her interest in the Union were those of Sep-
tember 29 and the final discharge notice of October 25. As
discussed above, the September 29 warning was a direct as-
sault on her right to share her criticisms about conditions of
employment with her coworkers. Therefore, it cannot be in-
voked as a legitimate predicate for Respondent’s decision to
discharge her.
Adams’ conduct on October 25 was not commendable. I
am persuaded that Lomis was a credible witness who, justly
offended when Adams failed to carry her fair share of their
workload, reported her behavior to Biermann. I further have
little doubt that Biermann observed Adams filing her nails
for 10 or more minutes. Adams explanation of her conduct
on this occasion was confused and contradictory. Initially she
claimed she filed only one broken nail. She then changed her
1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 This was not the first time that Adams offered contradictory evi-
dence. When justifying her disregard of Biermann’s order to refrain
from entering the shipping department, Adams testified that she did
so only after attempting to find the proper supervisor in that area.
However, when she explained her behavior on the disciplinary form,
she wrote that she sought the supervisor only after attempting to
enter the shipping department.
17 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.
account to say she needed to file all of her frayed nails, still
later she alleged that she filed her nails intermittently while
inspecting parts.16
Spending 10 or more minutes filing one’s nails on the job
is unacceptable. Adams’ conduct may have deserved rebuke;
but all things considered, it hardly provided compelling
grounds for termination. A warning or even a brief suspen-
sion would have been appropriate, particularly when others
at the plant also wasted time in personal grooming. Further,
Respondent’s employee manual provides that breaches of
conduct could subject an employee to disciplinary action
ranging from a verbal or written warning to suspension and
lastly, termination, depending on the nature of the offense
and the circumstances involved. Without explanation, Re-
spondent leaped from an unlawful written warning to dis-
charge without ever having chosen to suspend Adams. The
severe sanction meted out to her may be contrasted with Re-
spondent’s treatment of another employee, Ross Kurylo, who
had ‘‘a record of continual tardiness, eight sick days . . .
this year . . . an additional personal day . . . [and] one un-
excused absence. Following numerous verbal warnings and a
prior written warning,’’ Respondent found that Kurylo’s
‘‘continued pattern of tardiness and absenteeism’’ warranted
no more than a 3-day suspension. (G.C. Exh. 17.) Respond-
ent’s more stringent treatment of Adams strengthens the con-
clusion that Respondent was eager to rid itself of a prounion,
vocal critic of management.
Respondent might have fired Adams for legitimate reasons
at some later date, for she apparently irritated not only her
supervisors, but some of her coworkers as well. However, on
the evidence presented here, it is impossible to conclude that
Respondent would have terminated Adams on October 25 in
the absence of her involvement in protected concerted activ-
ity and prounion stance. Accordingly, I find that Respondent
violated Section 8(a)(1) and (3) of the Act by discharging
Adams on September 29.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By prohibiting its employee, Pamela Adams, from dis-
cussing working conditions with her fellow employees, or-
dering her to direct her complaints solely to management,
and threatening her with discharge in the event she continued
to engage in protected concerted activity, Respondent vio-
lated Section 8(a)(1) of the Act.
4. By terminating Adams because she engaged in union
and other protected concerted activity, Respondent violated
Section 8(a)(1) and (3) of the Act.
5. The unfair labor practices described in paragraphs 3 and
4 above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in the above-
described unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom, and take certain af-
firmative action designed to effectuate the policies of the
Act.
Specifically, Respondent shall be directed to cease prohib-
iting employees from discussing working conditions with
their fellow employees, directing them to relay their com-
plaints about such conditions solely to management and
threatening them with discharge if they fail to comply.
In addition, having unlawfully discharged Pamela Adams,
the Respondent shall be ordered to offer her reinstatement
and make her whole for any loss of earnings and other bene-
fits, computed on a quarterly basis from date of discharge to
date of proper offer of reinstatement, less any net interim
earnings, as prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Further, Respondent shall be directed to post the notice to
employees appended to this decision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended17
ORDER
The Respondent, Astro Tool & Die Corporation, Cudahy,
Wisconsin, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interfering with, restraining, or coercing employees in
the exercise of the rights guaranteed them by Section 7 of
the Act by prohibiting them from talking to fellow employ-
ees about working conditions, instructing them that com-
plaints about working conditions shall be presented solely to
management, or threatening them with discharge if they en-
gage in such activities.
(b) Discouraging union or protected concerted activity by
discriminatorily terminating employees, or in any other man-
ner discriminating against them with regard to their tenure or
employment.
(c) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Pamela Adams immediate and full reinstatement
to her former job or, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to her senior-
ity or any other rights or privileges previously enjoyed, and
make her whole for any loss of earnings and other benefits
suffered as a result of the discrimination against her in the
manner set forth in the remedy section of this decision.
(b) Remove from its files any reference to the unlawful
warning issued to Pamela Adams on September 29, 1993,
and to her discriminatory discharge on October 25, 1993, and
notify her in writing that this has been done and that neither
1165ASTRO TOOL & DIE CORP.
18 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.’’
the warning nor the discharge will be used against her in any
way.
(c) 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 due under the terms of this Order.
(d) Post at its facility in Cudahy, Wisconsin, copies of the
attached notice marked ‘‘Appendix.’’18 Copies of the notice,
on forms provided by the Regional Director for Region 30,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees cus-
tomarily are posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.