Dawson Carbide Industries, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 382 (N.L.R.B. 1984)

382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Dawson Carbide Industries, Inc. and Carol Ann
, Kustosz and David Lincoln and International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW,
and its Local 157. Cases 7-CA-21026, 7-CA-
21238, and 7-RC-16764
14 December 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 30 March 1984 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.,
The National - Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief' and has
decided to affirm the judge's rulings, findings, 2 and
conclusions and to adopt the recommended Order
as modified. 3 .
The judge found that the 'Respondent violated
Section 8(a)(1) of 'the Act by interrogating, threat-
ening, and promising benefits to employees, and by
publishing a plant rule restricting notice posting be-
cause of its employees' union activities, and violat-
ed Section 8(a)(3) by discriminatorily laying off
Carol Ann Kustosz and Howard Churchwell on 30
July 1982 and David Lincoln on 17 September
1982. 4 We disagree only with the judge's finding
that Lincoln's layoff violated Section 8(a)(3).5
The Respondent has requested oral argument The request is denied
as the record, exCeptions, and bnef adequately present the Issues and the
parties' positions - ' -
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
3 The judge recommended a broad cease-and-desist order In Hickmott
Foods, 242 NLRB 1357 (1979), we held that such broad injunctive lan-
guage is warranted only when a respondent has been shown to have- a
proclivity to violate the Act, or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the employ-
ees' fuzidamental statutory nghts We do not find that the instant viola-
tions 'Meet such a test Consequently, we modify the recommended Order
to require the Respondent to cease and 'desist from violating the Act in
any like or related manner
We decline to addreis the Respondent's contention that the Board
should not award backpay to any reinstated employees for certain pen-
ods when they would have been laid off regardless of their union activi-
ties because of economic difficulties in late 1982 The issue may, of
course, be raised in compliance proceedings
4 All dates.refer to 1982 unless otherwise indicated
5 In affirming the judge's finding that Kustosz and Churchwell were
discnmmatonly laid off, we find It unnecessary to rely on the lack of
notice given before the.layoffs, or the fact that employees continued to
work overtime after the layoffs
The Respondent hired Lincoln in early 1982 pri-
manly to perform work on turnover dies at the Re-
spondent's small manufacturing shop. Carol Ann
Kustosz triggered an organizational campaign on
29 July when she discussed, the need for a union
with Lincoln and other employees at lunch. Lin-
coln was an open union supporter.6
During his employment, Lincoln spent about a
quarter of his time on turnover dies because turn-
over die orders were not consistent. The rest of his
time he did machine work that other employees
also performed. From early August until his layoff
in mid-September there was no turnover die work.
The Respondent's business experienced a general
decline in the fall of 1982: Although sales - income
due to labor work at the shop tripled from June to
July and remained high through September, orders
began to slow down in September; labor sales
dropped sharply in October and remained de-
pressed for several months. 7 On 17 September, 2
weeks before the representation election, the Re-
spondent laid off Lincoln, the most junior employ-
ee in the shop, along with the three other employ-
ees who had the next lowest seniority rankings,
Gerald Schornack, Dennis Demers, and John Zie-
linski.
At the time of the layoffs the Respondent had
been notified it would receive an order of turnover
dies on 1 October. When the order arrived Lin-
coln's supervisor was able to perform the work.
The Respondent hired no one to replace the four
employees for at least a year.
Lincoln, Schornack, Demers, and Zielinski filed
a charge with the Board on 29 September alleging
that their layoffs were unlawful. On 10 November
the Board's Regional Director for Region 7 dis-
missed the portions of the charge relating to the
layoffs of Schornack, Demers, and Zielinski, and
amended the General Counsel's complaint against
the Respondent concerning the 30 July layoffs to
include Lincoln's layoff. On appeal, the General
Counsel upheld the dismissals for lack Of evidence
establishing discriminatory motive in light of the
Respondent's apparent business decline and the
three employees' low seniority.
The judge found that the Res.pondent's knowl-
edge of Lincoln's role as a union supporter and
6 When management called Kustosz to the front office on 29 July to
talk about the organizing, Kustosz requested that Lincoln accompany
her Management refused to allow Lincoln to be present On 2 August
the Union informed the Respondent that Lincoln was an organizing com-
mittee member
The Respondent's monthly labor sales, representing dollars earned
for work performed on the products It shipped, were as follows June—
$30,989, July—$8.5,793, August—$89,020, September—$74,818, Octo-
ber—$31,689 The judge did not state that the figures are in dollars Also,
the judge's September shipment figure Incorrectly Includes costs for ma-
tenals that were passed on to the buyers
273 NLRB No. 60
DAWSON CARBIDE INDUSTRIES 383
Kustosz' ally, coupled with the- timing of the layoff
and the Respondent's demonstrated union animus,
made out a prima facie case of unlawful discrimina-
tion. The judge dismissed the Respondent's eco-
nomic defense, finding that Lincoln should have
been retained despite the layoff of more senior em-
ployees. 8 Noting that at the time of the layoffs a
turnover die order was expected to arrive within a
couple of weeks, the judge found that Lincoln
should have been retained even if there had been a
shortage of turnover die work because the need for
his special skill might recur in the future.
We disagree with the judge's finding on the Re-
spondent's economic defense. The Respondent's
economic decline in the fall of 1982 justified lay-
offs. Four employees were laid off in September
and they were not replaced. At the time of the lay-
offs, Lincoln had the lowest seniority in the plant.
He possessed a special skill, but the Respondent's
need for that skill had declined sharply, and Lin-
coln's supervisor was able to meet that need with-
out assistance after Lincoln was laid off. Thus, the
record does not support the judge's suggestion that
Lincoln was indispensable.
We conclude that the Respondent would have
laid off Lincoln absent his union activities and
therefore Lincoln's layoff did not violate Section
8(a)(3) of the ACL9
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
5.
"5. Respondent engaged in unfair labor practices
in violation of Section 8(a)(3) of the Act by termi-
nating Carol Kustosz and Howard Churchwell be-
cause of employees' union activities."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and set out in full below and
orders that the Respondent, Dawson Carbide In-
dustries, Inc., Warren, Michigan, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Coercively interrogating any employee con-
cerning the employee's union activity.
(b) Threatening any employee with unspecified
reprisals for engaging in union activities.
8 See Wright Line, 251 NLRB 1083 (1981), enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 US 989 (1982)
9 Our analysis of Lincoln's layoff does not affect the judge's finding
that the 30 July layoffs of Kustosz and Churchwell violated Sec 8(a)(3)
of the Act Although the Respondent proved a business decline in the fall
of 1982, there was no demonstrated decline in July or August
(c) Threatening employees with plant closing
and termination if employees select union represen-
tation.
(d) Promising any employee a wage increase in
order to persuade such employee to back off from
efforts to secure union representation.
(e) Publishing any plant rule prohibiting the post-
ing of notices anywhere in the plant without prior
consent of Respondent because of employee union
activities.
(f) Threatening any employee with strict rules
and regulations if employees select union represen-
tation.
(g) Terminating or laying off any employees be-
cause of employee union activities.
(h) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer Carol Kustosz and Howard Churchwell
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, without prejudice to their
seniority or any other rights or privileges previous-
ly enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the remedy section of the judge's decision.
(b) Remove from its files any reference to the
unlawful layoffs and notify the employees in writ-
ing that this has been done and that the layoffs will
not be used against them in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, 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) Rescind the no-posting rule it unlawfully pro-
mulgated so as to permit the posting of union-relat-
ed material on company bulletin boards or other
appropriate locations without prior approval.
(e) Post at its facility in Warren, Michigan,
copies of the attached notice marked "Appen-
dix." 10 Copies of the notice, on forms provided 'by
the Regional Director for Region 7, after ,being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
'° 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(f) Notify the Regional Director in - writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the challenges to
the ballots cast by Carol Ann Kustosz and Howard
Churchwell in the representation election held 30
September 1982 are overruled, and Case 7-RC-
16764 is remanded to the Regional Director for
Region 7 for the ballots to be opened and counted
and a revised tally of ballots isssued.
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 ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
TO form, join, or assist any union
To bargain collectively through representa-
tives of their own choice -
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate any em-
ployee concerning the employee's union activities.
WE WILL NOT threaten any employee with un-
specified reprisals for engaging in union activities.
WE WILL NOT threaten employees with plant
closing and termination if employees select union
representation.
WE WILL NOT promise any employee a wage in-
crease in order to persuade such employee to back
off from efforts to secure union representation.
WE WILL NOT post or maintain any plant rule
prohibiting posting on bulletin boards or anywhere
, in the plant without prior permission because of
employee union activities.
WE WILL NOT threaten any employee with strict
rules and regulations if employees select union rep-
resentation.
WE WILL NOT terminate or lay off our employ-
ees because of their support for International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW,
and its Local 157, or any other labor organization.
-WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer Carol Kustosz and Howard
Churchwell immediate and full reinstatement to
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, without preju-
dice to their seniority or any other rights or privi-
leges previously enjoyed and WE WILL make them
whole for any loss of earnings and other benefits
resulting from their discharge, less any net interim
earnings, plus interest.
WE WILL notify each of them that we have re-
moved from our files any reference to the unlawful
layoff and that the layoff will not be used against
them in any way.
WE WILL rescind the no-posting rule that we un-
lawfully promulgated so as to permit the posting of
union-related material on company bulletin boards
or other appropriate locations without prior ap-
proval.
DAWSON CARBIDE INDUSTRIES, INC.
DECISION
STATEMENT OF THE' CASE
HAROLD BERNARD, JR., Administrative Law Judge. I
heard these consolidated cases on January 11 and 12,
1983, in Detroit, Michigan, pursuant to consolidated
complaint issued November 10, 1982, and order consoli-
dating the representation and unfair labor practice cases
on January 4, 1983. The issues are whether the Respond-
ent terminated employees Carol Ann Kustosz, Howard
Churchwell, and David Lincoln due to employees' sup-
port for the Union in violation of Section 8(a)(3) of the
Act in consequence of which, inter aim, their challenged
ballots in Case 7-RC-16764 should be opened and count-
ed and, further, whether the Respondent engaged in var-
ious conduct alleged to -violate employees' rights under
Section 7 of the Act during the period surrounding the
July and September 1982 employee terminations.'
On consideration of the entire record, including the
witnesses' demeanor and briefs filed by counsel for the
General Counsel and counsel for Respondent, I make the
following
The tally of ballots for the election held on September 30, 1982,
shows the following ballots were cast two yes, three no, and six chal-
lenges, of which three challenges were later sustained, leaving the status
of ballots cast by Kustosz, Churchwell, and Lincoln for determination
herein.
DAWSON CARBIDE INDUSTRIES 385
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent, a Michigan corporation engaged in manu-
facture and sale of tool components at its plant in
Warren, Michigan, annually ships products valued in
excess of $50,000 directly to points outside Michigan. As
admitted, I find that Respondent is an employer engaged
in commerce within the meaning of the Act. The Union
is the Petitioner in the companion representation case,
and its status as a labor organization within the meaning
of the Act is established.
II. THE UNFAIR LABOR PRACTICES
A. The Layoff of Carol Kustosz
Carol Kustosz was hired in October 1981 as a machine
operator and also to perform inspection work, then being
performed by Kenneth Bratt, general manager in Re-
spondent's tool component grinding and production shop
where up to 14 employees were assigned to machine op-
erating tasks. •
Kustosz inspected studs under. a shadow graph check-
ing for correct tolerances, then cleaned and packaged
them for shipment. She also did chamfering production
work, deburred burrs on studs, used the grinding ma-
chine, and when such jobs were completed returned to
inspection work. A month after Kustosz was hired Re-
spondent's owner, Oscar Guensche, openly and warmly
praised Kustosz on the shop floor to Edward Bernacki,
vice president, for her fine work performance. Shortly
afterward, Kustosz received a wage increase although
she had only been working 5 weeks and the established
waiting period was 90 days. Within a few weeks Kustosz
received a second wage increase after devising a time
saver on the chamfering machine. She received yet a
third raise only a few weeks later, being informed by her
floor manager, the owner's son,- Clayton Guensche, that
the reason for the raise was because she deserved it. Re-
spondent General Manager Kenneth Bratt . testified that
during his interview of Kustosz he only promised her an
increase after 90 days, and that her wage increases were
unusual in the shop. By the time of later events described
below, Kustosz, who had taken training at the Chrysler
Learning Training Cenler before being hired by Re-
spondent, and who sought college training for a journey-
man's card as a general machinist dunng her tenure, had
performed numerous tasks in the shop, including oper-
ation of grinders, Harding lathe, larger lathe, speed lathe,
and a centerless grinder, all in addition to inspection
work.
The events directly preceding Kustosz' layoff -oc-
curred on July 29 and during the morning of July 30,
1982.
Kustosz spoke with Clayton Guensche at 7 a.m.
Thursday, July 29, in the front inspection room, remind-
ing him about earlier assurances concerning a pay raise
and asking what her chances were. When Guensche re-
sponded negatively, Kustosz described how she would
be better off given family problems at home and the only
slight difference between her present pay and the amount
she would receive on layoff if Respondent would simply
put her on such status noting, in addition, that work
looked slow to her anyway. Guensche told her he could
not do that, explaining that the shop had a lot of work, a
large order of studs was coming in and there was a lot of
work she did not-know about.
Later in the same morning, Kustosz explained her
family problems to Bratt, again asking if there was any
chance for a promised raise and, when told no, asked
about a layoff Bratt responded no to this request as well.
About a half hour later Bratt went to Kustosz and asked
her who she thought she was "to say when she deserved
a raise." Kustosz asked if he was so -upset then why not
give her a layoff, and Bratt replied because the Company
did not lay off people for no reason.
During the lunch break, Kustosz told other employees
that the employees needed a union, and phoned Attorney
Webb to whom she described the situation at the shop
and how employees were seriously considering a union
for representation.
Kustosz then returned to her work station and pre-
pared three signs which she then wore on her person,
,one on 'each shoulder, and one on her back. One con-
tained the handpnnted words, "THIS PLACE NEEDS
A UNION," a second, "I don't want to be layed [sic]
offl Carolann," and the third, also handprinted,
"DAWSON INC. NEEDS A UNION." Kustosz stated
that she signed the second one because she did not want
anyone to think she wanted to be permanently laid off.
It did not take very long before Kustosz' actions
caused a considerable stir. Respondent Vice President
Edward Bernacki walked by, stopped to talk to Oscar
Guensche's nephew, and the two looked over at Kus-
tosz. Moments later, Respondent Owner Oscar Guensche
came by and noticed the signs. Kustosz testified: "He
stood directly in front of me and just leaned forward and
had a pouting expression on his face, and then he walked
up front, and all of them [Guensche, Bernacki, and
Guensches nephew, a shop employee] were just talk-
ing."
Employee Timothy Ray then told Kustosz he was or-
dered by Clayton Guensche not to come and speak to
her, and employee David Lincoln told her that Kenneth
Bratt had just approached him and told him, "Carol's
crazy."- Lincoln, who testified that Bratt added, "that's
all this place needs is a union," also advised Kustosz not
to talk to management alone as she was in trouble and
would need witnesses.
An hour later, around 2:30 p.m., both the plant manag-
er and Clayton Guensche went to Kustosz at her work
station. According . to Kustosz, Guensche pointed his
finger at her and screamed, "Are you doing this to me?"
and when Kustosz asked, "doing what to you,"
Guensche said, "Bringing this union thing in here." She
replied she had discussed her raise with him that morn-
ing, that it was not him, it was the Company. Guensche
then said, "I am taking this on a personal note" and that
he was very ,disappointed in Kustosz after all he had
taught her. At one point Kustosz was told there would
be more conversation in the office with her concerning
the matter and she indicated she wanted employee Lin-
coln to bemith her. When told Lincoln was not going to
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be present, Kustosz replied that she then had nothing to
say.
I find, based on the foregoing, that Respondent,
through admitted Supervisor Clayton Guensche, unlaw-
fully interrogated Kustosz concerning her union activi-
ties as his questioning accusation, whether rhetorical, as
contended by Respondent on brief, or not, was calculat-
ed to instill fear in the employee in connection with the
exercise of Section 7 rights. Detroit Tubing Mill, 268
NLRB 1104 (1984); K-C Machine_& Tool Co., 268 NLRB
1474 (1984). Further, I find that by pointing and,scream-
ing at Kustosz concerning her sign-wearing and inten-
tions to bring in a union coupled with the admitted state-
ment, sinister in this context, that he was "taking this on
a personal note" after all he had taught her, Guensche,
and thereby Respondent, unlawfully threatened Kustosz
with unspecified reprisals because she engaged in activi-
ties in support of union representation, thereby further
violating Section 8(a)(1) of the Act. Montgomery Ward &
Co., 234 NLRB 13, 53 (1978), and Misericordia Hospital
Medical Center, 246 NLRB 351 (1979).
Kustosz, after the above, had another conversation
with Guensche that *day wherein she attributes the fol-
lowing comments to Guensche, who did not deny the at-
tributions but merely could not recall his statements,
wherefore Kustosz, whose demeanor and testimonial per-
formance Warrant such, is credited.
She testified that during this second conversation
Guensche remarked that, "Well, you're drowning . . .
why are you taking me down with you," explaining that
"If yoh bring a union in here, I'm going to lose my job."
Kustosz testified further that Guensche then said, "If a
union comes in that his father [Oscar Guensche] would
lay everyone off and close the place down." This unden-
ied statement by Supervisor Clayton Guensche, son of
RespOndent Owner Oscar Guensche, is found to be an
unlawful threat of plant closing and employee termina-
tion should employees secure union representation, a fur-
ther violation of the Act. Purolator Armored, Inc., 268
NLRB 1268 (1984), and K-C Machine & Tool Co., supra.
Guensche accused - Kustosz of screaming union because
she did not get her way and 'asked, "Why don't you just
leave."
When Khstosz sought a compromise with Guensche
the latter .told her the whole front -office was against her
but made it clear if she backed out he could keep her on,
stating, "I can do anything." Guensche then asked -Kus-
tosz what she wanted, offering her $8 an hour to back
out. 2 Kustosz declined the offer, expressing concern that
if she backed dowii she would be out on the street. She
informed Guensche she expected a call from a lawyer
that evening explaining what employee rights were for a
union. Based on the foregoing, it is concluded that by of-
fering Kustosz a wage increase to drop the union efforts,
Respondent unlawfully promised a benefit to discourage
2 Respondent's counsel On bnef points to vanances'in this conversation
as reported by employee Lincoln, who overheard it, and Kustosz, who
participated in it Those vanances are not unusual however, when two
witnesses descnbe the same conversation, and in this instance the gist in
the incident emerges unchanged, more significantly, Guensche, who
failed to remember numerous events and conversations, could not recall
his remarks dunng this one as well, but did not deny the attnbutions
employee exercise of rights guaranteed by Section 7 of
the Act, thereby further violating Section 8(a)(1) of the
Act. Telegram-Tribune Co, 268 NLRB 1114 (1984); and
Haddon • House Food Products, 242 NLRB 1057 (1979). As
their conversation drew to a close Kustosz asked why it
was not possible to compromise and make arrangements
in regard to even a layoff. She was told it could not be
done because this would be illegal as, "we have a lot of
work here" and a large order of studs was coming in.
. Respondent's reaction to the conduct of Carol Kustosz
on July 29 picked up even further momentum the next
morning, when employees arrived to see posted what
was to them a brand new rule which stated, "Employees
shall not post any notices anywhere in the plant or on
bulletin boards without the prior consent of the General
Manager." The notice was signed by Kenneth Bratt, gen-
eral manager. Respondent, on brief, argues that this was
merely "republication" of an existing rule hence valid,
but there is no merit in such contention. Employees were
unaware of any such rule being in existence in the past.
Further, although Respondent proffered an extract from
alleged plant work rules, Respondent's own general man-
ager admitted that there was no employee manual for
this shop, that to his knowledge rules have not been
printed up or distributed to Respondent's employees, and
that there was no personnel manual. Bratt admitted fur-
ther on cross-examination that the work rules had been
posted on a neighboring company's (Harboe Company)
side of the plant property where Respondent's employees
are not employed. Moreover, given its unexplained ap-
pearance otherwise out of the blue it can only be con-
cluded that such rule was discriminatorily motivated by
Kustosz' conduct the day before. Such being its purpose
and content requiring prior approval for any posting, the
rule can only be considered yet another Respondent in-
terference with its employees' exercise of Section 7
rights violative of the Act. Liberty' House Nursing Home,
236 NLRB 456, 461 (1978).
When Kustosz saw the 'rule that morning, she made a
placard containing the picture of her two children, wrote
the word "United" under it, and wore it on her shoulder.
At 9:30 a.m. Kustosz telephoned her mother and told
her the fellows were coinirik over for ,a meeting that
night and to be sure the coffeepot was ready. When she
turned around she saw Kenneth Bratt close behind her
listening to her talk on the phone. Kustosz noticed Bratt
leave and go to Clayton puensche's area and that the
latter, together with Bratt and Comaphy Vice President
Edward Bernacki seemed to be in aliuddle. After morn-
ing breaktime, without warning, Bratt handed Kustosz a
termination slip, citing lack of work as the reason.
Analysis of Kustosz' Termination
There are numerous factors which militate towards a
conclusion that Kustosz' termination was an unlawful
act. A preponderance of the evidence discloses that Kus-
tosz was an unusual, highly prized employee until her
sudden termination only 1 day after angering Respondent
by her open union advocacy. The record plainly estab-
lished her high fitness for the many and varied tasks as-
signed to her for which she was -rewarded with early
DAWSON CARBIDE INDUSTRIES 387
wage increases and praise by high management officials,
including . Respondent owner Oscar Guensche, who per-
sonally singled her out on the plant floor for special
praise. Her union. activities were open, substantial, and
well known to management and the record is clear that
those activities stirred immediate and considerable Re-
spondent animus towards her, including coercive ques-
tioning and accusation, unlawful promise of benefit, un-
lawful curtailment of employee expression concerning
union representation in the plant, threats of unspecified
reprisals,, and threats of termination and plant closing
should employees secure union representation. These in-
dicia of unlawful motivation behind the termination are
augmented by the fact that Respondent gave no notice
whatsoever to Kustosz concerning her layoff, when it is
reasonable to suppose that such notice would normally
have been extended to an employee with her record.
Respondent _claims however, based on Bratt's testimo-
ny, that there was a policy against giving an employee
advance notice of layoffs because of possible employee
reprisal while the employee was. on the job between the
time of such notice and the.employee's actual last day of
employment. In this connection, Bratt testified that the
decision concerning Kustosz was made in June due to a
shortage of work.
The obvious fallacy in Bratt's defense is that if, in fact,
the decision to lay off Kustosz had been made in June,
then there was no reason Bratt , and Clayton. Guensche
should ' deny her initial requests for a layoff on July 29 if
indeed Bratt had scheduled her for a layoff the very day
following 'her request—especially since Kustosz had
pressed her inquiry so steadfastly. It is strongly worthy
of note that Respondent's policy of avoiding reprisal by
not giving advance notice of layoffs would hardly be ap-
plicable to a case where the employee herself had sought
the layoff, for in such instance, it would not reasonsbly
be expected that there would be any reprisal—nor is it
reasonable to suppose the 1-day notice involved in this
layoff, involving so valuable an employee, would likely
occasion harm to Respondent's. property. I conclude that
the failure to give notice to Kustosz arose from Re-.
spondent's animus-fueled decision to rid itself of a proun-
ion employee activist , rather, than any -valid "policy." Au-
tog/ass & 'Upholstery Co, 264 NLRB 149_ (1982); Class
Watch Straps Co., 267, NLRB (1983).
If these considerations did not already suffice to estab-
lish the unlawful discharge, other factors serve to con-
firm such a finding. Respondenes, first witness to sue/port
its defense that lack of work, led to an earlier decision to
lay off employees was Vice President , Edward Bernacki,
who was mainly fed leading questions and therefore his
testimony is really the testimony of Respondent counsel,
who was not on the witness stand. Bernacki merely "as-
sumed" he had spoken , with Guensche and Bratt earlier
about the subject of layoffs and concurred. He testified,
"I may have made the recommendations," and that,. after
leading by counsel, to wit, "June or July?"-he answered,
"It is very possible, yes." •
But if he was vague in responding to leading questions,
Respondent's next witness on ' its shortage of work de-
fense engaged in exaggeration. Thus, Bratt testified that
in early May he knew "we had far too many people and
if we could not develop other business there would have
to be drastic layoffs." Bratt stated' (in June), "We were
very short of work. Many other small parts were put on
hold or delayed and canceled and all kinds of things had
happened" to him. It turned out that only two employees
were laid off at that time. This testimonial overkill arose
in the context of an operation which clearly and admit-
tedly had its ups and downs and the references to being
very short of work and all kinds of things having hap-
pened to him [Oscar Guensche, the owner] are simply
not tied in clearly to any rationale for terminating Kus-
tosz and they detract from Respondent's defense. Tele-
gram-Tribune Co., supra at 39. Nor was Oscar Guensche,
owner of this relatively small shop and assumedly an au-
thoritative and knowledgeable figure who could explain
such matters, called upon by Respondent to testify at all.
Respondent's economic defense is rendered further du-
bious 'by its own exhibit, introduced by the Charging
Party, which shows an improved record in - shipments for
July 1982-85,793 as against 30,989 for the previous June
1982—nor was this a mere flash in the pan, as August
showed still more improvement to 89,020, and September
109,450.
It is undenied that the employees remaining after the
layoff worked overtime for substantial periods, which in-
dicates there were other options to losing Kustosz open
to Respondent were this action against her merely
caused by work shortage, that is, a redistribution of the
work, and no valid reason was tendered for not avoiding
the layoff of a valued employee. It defies belief that Re-
spondent would reject such an alternative because it be-
lieved it would lose employees, who would allegedly
quit their work in a well-known job-depressed Detroit,
Michigan area rather than lose overtime.3
With respect to Respondent's contention that Kustosz
was laid off in seniority the record supports the view
that there was no uniformly followed policy according
seniority rights to employees in times of layoff. In fact
Respondent had passed over Kustosz and another em-
ployee, as well, to lay off a more senior employee (W.
Darlak) because of comparatively better work perform-
ance (skill in Lincoln's case) in the junior employees
(Kustosz and Lincoln). No reason was advanced why, in
this case, especially since there was inspection work left
to be down by Bratt, and she had been told only 1 day
before (as later confirmed by employee Lincoln below)
that there was plenty of work to be done, Kustosz was
not retained to do such work but instead was terminated
the very next day. Based on all the foregoing, I find that
counsel for the General Counsel has established by a
strong preponderance in the evidence, including allow-
able and compelling inferences therefrom, that Respond-
ent discriminatorily terminated Carol Kustosz in viola-
tion of Section 8(a)(3) and (1) of the Act because she en-
gaged in activities in support of union representation.
Purolator Armored, Inc., 268 NLRB 1268 (1984), and
3 Clayton Guensche's testimony that 3 employees told him this in June
would hardly dictate the enactment of policy in a shop employing at one
time 14 employees, especially given the harshness of such a policy in an
admittedly job-depressed area and expectable repercussions from employ-
ees affected by Its Implementation
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cases cited therein; Universzdad Interamericana de Puerto
Rico, 268 NLRB 1171 (1984); ,Class Watch Straps Co.,
supra, 267 NLRB 276 (1983), and Autoglass & Upholstery
Co., supra, 264 NLRB 149 (1982).
The Layoff of David Lincoln and Related Events
Respondent General Manager Bratt was surprised, on
Monday, August 2, following Kustosz' layoff, when he
confronted a stranger in the plant, one Peter Bernert, a
former fiance of Kustosz, who was delivering a letter
from Charging Party Counsel L. -Rodger Webb The
letter informed Respondent that the Union was organiz-
ing its employees and identified members on the organiz-
ing committee, including employee David Lincoln. Bratt
insisted that Bernert enter via the front door and an-
nounce himself to the receptionist. In an ensuing commo-
tion, I find that Bratt, in the presence of an office clerical
employee and others, and in a voice loud enough with
others shouting to be heard but not then understood by
plant employees, twice exclaimed while trying to oust
Bernert and while throwing the letter on the floor that,
"We don't need a union in here. If a union comes in here
we'll close this place down." I find that Respondent,
through General Manager Bratt, as undefiled, threatened
employees with plant closing if employees selected union
representation thereby further violating Section 8(a)(1) of
the Act.
By letter to Respondent dated August 3, 1982, the
Union's Local vice president sent Respondent a letter
similar to Webb's, again naming Lincoln as a member on
the organizing committee
About 5 weeks after Respondent laid off Kustosz, Lin-
coln testified that 13ratt came to his machine and told
him he was going to explain unions to employees, about
procedures, and "how that if you get a union in, there's
going to be strict rules and regulations," and that unions
were bad because they made companies noncompetitive.
I find that Bratt made this statement with no valid prefa-
tory context or explanation 'leaving a sinister impact and
thereby threatened an employee with strict rules and reg-
ulations, in effect, less desirable working conditions, if
employees selected union representation, thereby violat-
ing Section 8(a)(1) of the Act. NLRB v. Gissel Packing
Co., 395 U.S 575, 618 (1969), and in relevant part Mark
I Tune-Up Centers, 256 NLRB 898, 906 (1981). Lincoln,
who in an earlier discussion with Bratt had informed him
that he did not think that unions were all that bad, coun-
tered , that there was an employee, Tim Ray, who was
among the highest in seniority but the lowest paid. Bratt
replied that "if the union came in here, that man would
probably be out the door," thereby further threatening
employee termination if employees selected a union,
again violating Section 8(a)(1) of the Act. When Lincoln
continued to express his views by, asking Bratt about
Carol Kustosz, Bratt said, "Well, she was laid off primar-
ily because of her attitude," a comment lending further
support, in my view, for the finding that Kustosz was
discriminatorily discharged. -
Revealingly, when Lincoln asked if there would be
any more layoffs after Kustosz and Churchwell, Bratt
told him no. This was the same answer Lincoln had been
given by Bratt just after the layoffs of Barlak and Jakel
on May 21, 1982, at which time Bratt had answered him
"we were going to be able to ride oiit the storm" In any
event, this assurance was also to prove inaccurate.
Early in September 1982, after he had 'signed a union
card, Lincoln notified Bratt he was receiving or had re-
ceived an NLRB subpoena and was to appear before the
NLRB to make an affidavit. Shortly after lunch, Lincoln
testified that Oscar Guensche walked by his work station
and gave him a dirty look while on the way to his office,
"a scowling look." On September 17, 1982, Respondent
terminated :Lincoln indefinitely. Lincoln testified that
same morning he went into the inspection room as usual
to see if there were any more dies and saw an order on
the table for 30 dies, scheduled to come in on October, 1,
1982. In addition, Bratt had told Lincoln 6 weeks earlier
that three orders were coming in, and offered no reason
why, as in the earlier May 'terminations, Lincoln, -a speci-
ality skilled machinist, was not retained because of such
special skill even if he had to do run-of-the-null shop-
work thereby wisely having him' on hand to do the spe-
cial turnover die work for which he possessed such valu-
able skill and experience when such need were to recur,
even assuming, without accepting the assertion, that
there was a shortage in that type work. Charging Party's
Exhibit 1, in this regard, shows more than a four fold in-
crease in shipments in September, the month of Lincoln's
discharge and the. previous February.
In assessing the allegation - that Respondent discrimina-
torily terminated Lincoln, Certain relevant factors , are
governing Lincoln was a known ally to Carol Kustosz,
who requested he be allowed to accompany her to the
front office in the very Midst of her most irritating
prounion behavior. Lincoln defended the idea of a union
to, management, specifying an employee who might
thereby be helped. He was expressly identified in two
letters from the Union to Respondent as a member on
the organizing committee, signea a union card and told
Respondent he was complying with a subpoena to make
an -affidavit before the NLRB's Regional Office soon
after which he was, in- the face of earlier reassurances to
the contrary, laid off indefinitely less than 2 weeks
before a Board-conducted representation election in cir-
cumstances which fail to provide -econOmic justification
for such action.' Given Respondent's knowledge of Lin-
coln's activities and support for the Union, its animus as
demonstrated by its numerous unlawful actions against
employee statutory rights, the timing, and unjustified, or
pretextual, nature of the advanced , reasons for its action,
I find on the bases of the above-cited authorities that' Re-
spondent discriminatorily terminated employee David
Lincoln in violation of Section 8(a)(3) of the Act.
McCarty & Son, Inc., 268 NLRB 1136 (1984).
The Layoff of Howard Churchwell •
Howard Churchwell was _hired April_ 13, 1982, as a
machinist, and ran several different types. He received,
on request, a wage increase on the Monday before his
layoff on July 30 with Kustosz. It is, at the outset, a fur-
ther basis to those explained above; to question ,whether
Respondent would bother giving employee Churchwell a
raise on Monday if, as alleged, Respondent had already
DAWSON CARBIDE INDUSTRIES 389
decided a month beforehand to terminate him 4 days
later. It seems further proof that Respondent actually
reached its decision regarding the July 30 terminations
on July 29 or 30 on the heels of the above-described
union activities In any event, Churchwell testified with-
out contradiction that there were substantial orders in
the plant, and that employees were taken off them to
work on another order about 2 weeks prior to his termi-
nation. He testified that while departing the plant on
July 30, after being terminated, Clayton Guensche ad-
vised him to return in a couple weeks, as "we might
have some work for you."
Counsel for the General Counsel contends that Re-
spondent. in order to shore up its defense that it termi-
nated Kustosz according to seniority, had to terminate
Churchwell, who was junior to , Kustosz, in order to get
to her and thus his termination was unlawful, as part of
an unlawful design to terminate Kustosz
The fact that Respondent failed to clearly support a
pre-July 29 or 30 decision for layoffs makes the July 30
layoffs suspicious in origin, since this action seems to
have arisen only from Kustosz' conduct in support of
union representation for employees The suspicion dee-
pens when Respondent's reasons for any layoff are not
persuasively tendered in testimony or other evidence.
The undefiled fact that Respondent told Churchwell, or
invited him, to return for possible work in a couple of
weeks belies a drastic need for any layoffs rather than,
for example, reduction in overtime, with a redistribution
of work, and raises the question why the offer was ten-
dered to Churchwell and not Kustosz, the senior in
terms of plant seniority A reasonable inference is that
Respondent desired him to return, and not her, and also
that all along there was available work to keep them
both busy. Laying them both off while extending an invi-
tation only to him to return served the dual purpose of
"following seniroity" in Kustosz' termination while de-
signedly resecuring the services of Churchwell a short
time later. The Board has held in the context of a union
organizing drive that an employer's discharge of uncom-
mitted, neutral, or inactive employees in order to
"cover" or to facilitate discriminatory conduct against a
targeted union-supporting employee or to discourage em-
ployee support for the union is violative of Section
8(a)(3) of the Act. Stratford Lithographers, 168 NLRB
469, 476, 477 (1967); and Majestic Molded Product, 143
NLRB 71 (1963), enfd. 330 F.2d 603, 606 (2d Cir. 1964).
See also NLRB v. Rich's Precision Foundry, 667 F.2d 613
(7th Cir. 1981). Necessarily, such findings depend on in-
ferences arising from the surrounding circumstances as
such employees, like Churchwell, are pawns in an unlaw-
ful design, rather than direct targets. Stratford Lithogra-
phers Inc., supra at 477. I draw the inference here that in
Respondent's angry resolve to terminate Kustosz it un-
lawfully removed Churchwell to validate such action,
thereby violating Section 8(a)(3) of the Act. In doing so,
I note Respondent's failed attempts to establish an eco-
nomic defense before me as to matters which, had the
contentions been based on fact, would have easily lent
themselves to demonstration—for example, records
showing hours worked per part number or type, or
orders on hand translated into the hours of employee
work necessary to fill such orders. Instead, the vagueness
and contrasting overkill in testimonial deliveries on such
matter, and the unspecific, nondeterminative nature of
Respondent's proffered exhibits, coupled with the inher-
ent improbability in its witnesses' explanations, left Re-
spondent's assertion of an economic defense unsupported.
By contrast, Charging Party's Exhibit I established, to
the contrary, that work was high at critical points. At
best, the operation was one with ups and downs and, as
noted in Respondent's brief, a long-delayed order did
come in after layoffs, a common enough expectation to
have forestalled any determination by Respondent that
drastic layoffs were necessary, unless, as I conclude
herein, the advent of its employees' union activities and
the soon-to-arrive Board election to determine union rep-
resentation provided such need in Respondent. I con-
clude this was the case.4
Representation Case 7-RC-16764
In view of the foregoing it shall be recommended that
the challenges to the ballots cast by Kustosz, Churchwell
and Lincoln be overruled and their ballots be opened
and counted, and that a revised tally of ballots issue, all
to follow the recommended remand of said case to the
Regional Director of Region 7 for said purposes.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section II,
above, found to constitute unfair labor practices occur-
ring in connection with the operations of Respondent de-
scribed in section I, above, have a close, intimate, and
substantial relationship to trade, traffic, and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent officials Oscar Guensche, Kenneth
Bratt, and Clayton Guensche at all times material herein
were supervisors and agents for Respondent acting on its
behalf within the meaning of the Act.
4. Respondent engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act by.
(a) Coercively interrogating an employee concerning
the employee's union activity
(b) Threatening an employee with unspecified reprisals
for engaging in union activities.
4 Counsel for Respondent makes the cogent observation on brief that
the Regional Office "found" declining orders in Respondent's operations
to buttress its position or economic defense in the present proceeding
The Region's report, GC-1k, reads, in the context of evaluating whether
certain employees (whose ballots were challenged) had a reasonable ex-
pectancy of recall, that "there is no evidence to rebut the Employer's
projection of declining business volume at the time of September 17,
1982" At this hearing, however, the issue was business activity at the
time of the layoffs and CP-1 rebuts the defense
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Threatening employees with plant closing and ter-
minations if employees selected union representation.
(d) Promising an employee a wage increase in order to
persuade the employee to back off from efforts to secure
union representation.
(e) Publishing a plant rule prohibiting the posting of
notices anywhere in the plant without prior consent of
Respondent because of employee union activities.
(f) Threatening an employee with strict rules and regu-
lations' if employees selected union representation.
5. Respondent engaged in unfair labor practices in v. io-
lation of Section 8(a)(3) of the Act by terminating Carol
Kustosz, David Lincoln, and Howard Churchwell be-
cause of employees' union activities.
6. Respondent did not engage in conduct creating the
impression that employees' union activities were being
kept under surveillance.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent engaged in the unfair
labor practices set forth above, I will recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent unlawfully terminated
Carol Kustosz, David Lincoln, and Howard Churchwell,
I will recommend that Respondent be .ordered to offer
them immediate and full reinstatement to their former or
substantially similar position, without prejudice to their
seniority or other , rights and privileges, and that Re;
spondent make them whole for any loss of pay they. may
have suffered . by reason of Respondent's discriminatory
actions by payment to them of a sum equal to that which
they would have normally received as wages from the
date of their termination until Respondent offers them re-
instatement, less any net earnings in the interim. Back-
pay, with interest, is to be computed on a quarterly basis
in the manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).5
I further will recommend that Respondent make avail-
able to the Board, on request, payroll and other records
in order to facilitate checking the amount of backpay
due them and other rights they may be entitled to re-
ceive.
As Respondent's conduct found unlawful herein goes
"to the very heart of the Act," a broad remedy is war-
ranted.6
[Recommended Order omitted from publication.]
5 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
6 Hickmott Foods, 242 NLRB 1357 (1979)