Electro-Wire Truck Products

National Labor Relations Board - Board Decisions

Dec 31, 1991

305 N.L.R.B. 1015 (N.L.R.B. 1991)

1015
305 NLRB No. 157
ELECTRO-WIRE TRUCK PRODUCTS
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In sec. II,D,2, par. 29, of his decision, the judge rejected, as hear-
say and incredible, Supervisor Kathy Gardner’s testimony that em-
ployee Melissa Wilson was required to use a tape measure con-
stantly and that there was a printed sign to that effect at her work
station. We do not agree that Gardner’s testimony was hearsay.
However, this does not affect the result in this case. Even if we ac-
cept Gardner’s testimony in this respect, we nonetheless adopt the
judge’s finding, based on other credited testimony, that the Respond-
ent did not find out that Wilson was not using her tape measure until
after the decision to discharge her had been made. Thus, Wilson’s
alleged failure to use the tape measure could not have been consid-
ered in the decision to discharge.
1 All dates are in 1990, unless otherwise indicated.
Electro-Wire Truck & Industrial Products Group
and International Union, United Automobile,
Aerospace and Agricultural Implement Work-
ers of America, UAW and Bonnie Lou Raines
and Sharon Reynolds. Cases 9–CA–27600–1, –2,
9–CA–27600–3, and 9–CA–27853
December 31, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On August 30, 1991, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs1 and has
decided to affirm the judge’s rulings, findings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Electro-Wire Truck & In-
dustrial Products Group, Campbellsburg, Kentucky, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Donald A. Becher, Esq., for the General Counsel.
William C. Martucci, Esq., of Kansas City, Missouri, for the
Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case
was tried in Carrollton, Kentucky, on February 25–26, 1991.
The initial charges in Case 9–CA–27600–2, were filed
against Electro-Wire Truck & Industrial Products Group (the
Respondent) by International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
UAW (the Union) on June 11, 1990.1 On June 12, Bonnie
Lou Raines, an individual, filed the charge against Respond-
ent in Case 9–CA–27900–3. On these charges the General
Counsel issued an original consolidated complaint on August
1. Sharon Reynolds, an individual, filed the charge against
Respondent in Case 9–CA–27853 on September 18. The
General Counsel consolidated all of these charges and issued
a second consolidated complaint (the complaint) on Novem-
ber 6. The complaint, as amended at the hearing, alleges that
Respondent has committed certain unfair labor practices
within the meaning of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The alleged conduct in viola-
tion of Section 8(a)(1) consists of threats and interrogations
by several different supervisors and one solicitation of griev-
ances. The alleged conduct in violation of Section 8(a)(3)
consists of the discharges of employees Kenneth ‘‘Don’’ Pe-
ters and Melissa Wilson and discriminatory enforcement of
a restroom pass policy. Respondent duly filed an answer to
the complaint, admitting jurisdiction of this matter before the
Board, admitting the status of certain supervisors within the
meaning of Section 2(11) of the Act, and admitting that the
employment of each alleged discriminatee ‘‘was concluded,’’
but denying the other alleged conduct and denying the com-
mission of any unfair labor practices. (I find herein that both
employees were discharged, and I use that term throughout
the narrative.)
On the entire record, and my observation of the demeanor
of the witnesses, and after considering the briefs that have
been filed by the General Counsel and the Respondent, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation that has an office and factory
in Campbellsburg, Kentucky, where it manufactures wiring
harnesses for the automobile industry. During the year pre-
ceding the issuance of the complaint, Respondent, in the
course of those business operations purchased and received
goods and materials valued in excess of $50,000 directly
from suppliers located at points outside Kentucky. Therefore,
Respondent is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act, and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. FINDINGS AND CONCLUSIONS
A. Background
Respondent’s plant opened in September 1989. At the time
of the events in question, Larry Kelly was the manufacturing
1016 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
superintendent and M. B. ‘‘Tex’’ Harp was the labor rela-
tions and personnel manager. The plant had about 180 em-
ployees who manufactured wiring harnesses, all of which
were sold to a Ford truck plant. The harnesses are groupings
of electrical wires that are attached to the firewall of a truck
and then connected to the cab’s instrument panel and con-
trols and other electrical accoutrements of the truck. No
union has represented any of the employees at the plant. Re-
spondent owns other plants which have had organizational
attempts.
At the time of the events in question, Respondent operated
a ‘‘first’’ shift which was regularly scheduled from 6:30 a.m.
until 3 p.m. It also operated a ‘‘split’’ or ‘‘second’’ shift
which was regularly scheduled from noon until 8:30 p.m. All
employees were subject to a 90-day probationary period.
B. The Prima Facie Case
1. Discharge of Peters
Peters was hired by Respondent on May 7. He was one
of three setup employees in the maintenance department at
the time he was discharged on June 4. A setup employee ad-
justed dies for production line machines. As a maintenance
employee, Peters reported to admitted maintenance super-
visor (within Sec. 2(11) of the Act) Gary Woody, and when
he was working in various production departments he would
report to departmental supervisors, as well. There was a total
of eight maintenance employees in the maintenance depart-
ment at the time of the events in question. Peters and other
maintenance employees testified, without contradiction, that
before the week of Peter’s discharge the maintenance em-
ployees had been working many hours of overtime. Peters,
himself, worked both the first and second shift during the pe-
nultimate week of his employment.
On Friday, June 1, the Union stationed agents near an exit
to Respondent’s plant to distribute flyers to employees. The
flyers announced that an organizational meeting would be
conducted by the Union at a hall in Carrollton, Kentucky, on
Sunday, June 3. About 10 of Respondent’s employees at-
tended the meeting. At the meeting, union representatives
distributed authorization cards and UAW T-shirts and but-
tons; some employees took buttons to distribute to other em-
ployees. Peters did not attend the June 3 union meeting.
a. Events of Monday, June 4
On Monday, June 4, Peters reported to work at 6:30 a.m.
At his morning break Peters was given a UAW button by
fellow maintenance employee Tim Ellegood who had at-
tended the June 3 union meeting. Peters put the button on
his clothing and went to work. Ellegood, Peters, and mainte-
nance employee Dominique Glover wore union buttons or T-
shirts throughout the day. Only about 10 of Respondent’s
employees wore UAW insignia on June 3 and 4; only two
probationary employees, Peters and Wilson, wore union but-
tons or T-shirts on those days.
The complaint alleges that on June 4, by admitted Press
Line Supervisor Betty Bolin, Respondent:
(i) Told employees that Respondent did not like
unions and threatened that if the Union were voted in
Respondent would close its facility.
(ii) Threatened employees that Respondent would
need only 30 days to move its equipment to a new lo-
cation and to be operating anew if its employees se-
lected the Union as their bargaining agent.
(iii) Threatened employees that Respondent had al-
ready made arrangements for a new building in which
to move its operations if the employees selected the
Union as their bargaining agent.
Several employees testified to such conduct by Bolin on June
4, early and late in the day.
Glover testified that he was in a work area during the
morning of June 4 when Bolin spoke to him and other em-
ployees. According to Glover:
She was sort of explaining how there had been a
union at the Electro Wire plant in Shelbyville [Ken-
tucky] and how it wasn’t no good and how it didn’t
help them any. And how it wouldn’t really help you get
a raise or nothing like that. And that if the union was
voted in at Electro Wire that supervision wouldn’t go
for it and that the plant would close.
. . . .
Uh, she has [sic] said something about the union at
Shelbyville wouldn’t let the company give them a raise
when they wanted to. She said the company froze
wages because the union wouldn’t let them give one.
. . . .
She said something about a Mr. Wheeler, who . . .
she said if it was voted in, he’d close the plant.
The complaint, as amended at trial, alleges that on June 4,
by Woody and Harp, Respondent solicited grievances and
impliedly promised to resolve them.
Glover testified that around noon on June 4 ‘‘we’’ (other-
wise unexplained) were in a work area and Woody ‘‘just sort
of stood around and didn’t say much. ‘‘Glover testified that
he addressed Woody:
And I asked him, you know, ‘‘What did they do, send
you out here to see what we wanted?’’ And he said,
‘‘Well, I ain’t going to lie to you. Yeah.’’
Woody testified, but he did not deny this response. Glover
told Woody that he thought the maintenance employees were
being required to work too many hours in a week, and that
he thought that Respondent should promote from within rath-
er than hire new employees for some positions. Woody asked
if the employees wanted to talk to anyone in higher manage-
ment about these matters, and Glover replied that some of
the maintenance employees would like to talk to Harp.
(There was a meeting with Harp on June 5, as discussed,
infra.)
Ellegood testified that it was he who was originally talking
to Woody on June 4 and, at some point, Glover joined them.
Ellegood testified that before Glover joined Woody and him,
his conversation with Woody had begun by
I was sitting there doing the welding setup, and he
came over and was talking to me and brung up and
asked me why that—I wanted the UAW or the union.
Ellegood testified that he told Woody that there were dif-
ferent reasons, but the ‘‘main thing’’ was money. Then
1017ELECTRO-WIRE TRUCK PRODUCTS
2 The transcript, at various places, uses ‘‘pool test’’ rather than
‘‘pull test.’’ It is accordingly corrected.
Woody ‘‘asked if we would go in to talk to Mr. Harp about
what we wanted and the reasons why we wanted a union.’’
Although there are some differences in the accounts by
Ellegood and Glover, Woody denied neither.
Peters testified that during the midafternoon of June 4,
Woody spoke to him in a work area. Woody asked Peters
if Peters had attended the union meeting the day before. Pe-
ters told Woody that he had not attended because of a family
emergency, but that he would have attended the union meet-
ing if he could have.
Woody did not deny this questioning of Peters. The com-
plaint does not allege any violative interrogations by Woody.
The complaint alleges that, on June 4, in violation of Sec-
tion 8(a)(3), Respondent ‘‘commenced discriminatory en-
forcement of its restroom [pass] policy against its mainte-
nance department employees.’’
Peters testified that at another point during June 4, when
he and maintenance employees Tim Ellegood and Kevin
Webster were in the restroom, Woody approached them and
he:
told us that from now on we had to go to production
department supervisors like everybody else and get a
pass for the bathroom. And we kind of moaned about
it and he said, ‘‘well, you should have expected it. It’s
probably going to get worse.’’
Peters testified that before this point, maintenance employees
had not been required to get restroom passes from super-
visors, although production workers had.
Woody did not deny any of this testimony, including the
‘‘get worse’’ remark.
As previously noted, the complaint alleges that, on June 4,
in violation of Section 8(a)(3), Respondent terminated Peters.
Also the complaint alleges that Respondent, by Woody on
June 4, ‘‘told an employee that if the employee had not worn
a union button, the employee would not have been dis-
charged,’’ in violation of Section 8(a)(1).
Peters testified that around 4:30 or 5 p.m. on June 4 a
group of maintenance personnel congregated around the
‘‘pull test’’ table,2 a work area, as they prepared to clock
out. The group included Supervisor Woody and maintenance
employees Ellegood, Glover, Deon Smith, Kevin Webster,
and Peters, all of whom wore union buttons or T-shirts on
June 4. As they stood around, they talked about what they
planned to do after work, which conversation apparently had
nothing to do with the Union.
Peters testified that the group was approached by Bolin.
Bolin asked Ellegood and Glover ‘‘what they wanted with
the Union.’’ Ellegood replied that the employees wanted bet-
ter working conditions. Bolin, further according to Peters, re-
plied that, if the employees got a union in, Respondent
would ‘‘lock the doors and move to [sic] the plant.’’ One of
the employees in the group responded that, if Respondent did
move the plant, it would take so long that respondent would
lose its sole customer, Ford Motor Company. Bolin replied
:hat it could be done in 30 days because Respondent already
had another plant ‘‘lined up,’’ and ‘‘[t]hey wouldn’t lose
nothing. . . . [T]hey done had a building located.’’ Further
according to Peters, Bolin said that if the employees were
successful in obtaining representation ‘‘they wouldn’t pay us
no more than minimum wage.’’ Bolin also told the employ-
ees that, at another of respondent’s plants, a union had been
chosen by the employees and they ‘‘hadn’t had a raise since
then and we wouldn’t get one until the plant solve he prob-
lem.’’
The complaint does not allege, as a violation of Section
8(a)(1), a threat by Bolin that Respondent would pay no
more than minimum wage if the Union were selected as the
employees’ collective-bargaining representative; nor does the
complaint allege that Bolin unlawfully interrogated any em-
ployees or threatened employees that their wages would be
frozen if they chose the Union as their collective-bargaining
representative.
Peters was discharged immediately after Bolin spoke to
the employees who were gathered with Woody at the pull
test table late in the afternoon of June 4. Peters testified that
after Bolin finished the remarks quoted above, he replied that
he did not like ‘‘the way they did these bathroom breaks.’’
Woody responded: ‘‘Well, it doesn’t really matter what you
like anyway, because today’s your last day.’’ The gathered
employees asked Woody why Peters was being terminated.
Woody picked up a sheet that indicated the number of setups
that had been done that day and stated, ‘‘We don’t need
three set-up people on [the] line.’’ The employees argued the
point with Woody. Peters testified:
I said, ‘‘You all know why I was fired is because I put
this union button on.’’ . . . And Mr. Woody kind of
looked at us and said, ‘‘[y]ou’re probably right. You’d
still have a job if you didn’t put that button on.’’
Maintenance employee Deon Smith, who was still em-
ployed by Respondent at the time of trial, testified consist-
ently with Peters, except that Smith testified that, while
Bolin, Woody, and the employees were gathered in the pull
test area, both Woody and Bolin said that the Respondent
would close the plant if the employees selected the Union as
their collective-bargaining representative. Smith testified:
[Peters] said the reason he wanted the union was be-
cause of them stupid restroom passes. . . . Gary
[Woody] said, ‘‘Little does he know, he doesn’t have
to worry about those anyway. This is his last day.’’
. . . We kind of thought [Woody] was joking, but then
he turned around and said, ‘‘Well, you can turn in your
tools.’’ . . . Kevin [Webster] asked, ‘‘Was he termi-
nated or was he laid off?’’ . . . [Woody] said, ‘‘He’s
fired. We don’t need him. . . . Well, he was hired for
the second shift anyway. And we’re not going to have
that anymore.’’
Mr. Peters then said, ‘‘I told you all if I put this pin
on that I would not have a job at the end of the day,
because my 90 days wasn’t up.’’ . . . [Woody] said,
‘‘You’re right, you probably shouldn’t have put it on.’’
Ellegood, who is currently employed by Respondent, testi-
fied, consistently with Peters and Smith, that, at the end of
the work day on June 4, as Woody and Bolin and several
employees were gathered in the pull test area, Bolin told the
gathering that if the employees chose the Union, ‘‘that they
would close the plant and they could move it within 30 days
and have it setup again somewhere else. . . . [T]hey would
1018 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 No witness was asked if Bolin had remained in the area to the
point that Woody discharged Peters and said whatever he did.
drop us to minimum wage and take our benefits and we’d
have to start our seniority over again.’’ Ellegood further tes-
tified that Peters said that ‘‘the reason why he wanted a
union was he didn’t like the pink passes . . . to go to the
bathroom.’’ Ellegood further testified that after Woody told
Peters to turn in his tools, the group asked if it was Woody’s
decision or a decision by higher management. Woody point-
ed toward the office area. Then, according to Ellegood:
Don took his button off and laid it down and said,
‘‘Don’t let them tell you anything different, boys. Right
here’s the reason why I got fired.’’ And Gary said,
‘‘You’re probably right.’’
On being told that he was discharged, Peters gathered his
tools, and Woody walked Peters toward Woody’s desk, out
of the hearing of the employees who had gathered at the pull
test table. Peters testified that
As we was walking up toward his desk, [Woody] said,
‘‘Life’s a bitch and then you marry one.’’ And then he
said, ‘‘You shouldn’t have put on the union button.’’
Woody denied the ‘‘probably right’’ remark at the pull test
table, and he denied and the ‘‘shouldn’t have put on the
union button’’ remark when he and Peters were out of ear-
shot of the other employees.3
Peters, Smith, and Ellegood placed Glover at the scene
when Peters was discharged. However, Glover testified that
he was ‘‘back and forth’’ from the pull test area and that he
did not learn of Peters’ discharge until after the fact.
Glover testified that, after Peters was discharged, Woody
and some other (unnamed) employees asked Woody whose
decision it was to discharge Peters. According to Glover:
‘‘We had asked him. And at first he didn’t want to say noth-
ing. And then once he said, uh, Larry Kelly had told him to
get rid of him.’’ Woody did not deny this remark attributed
to him by Glover.
b. The events of June 5 and 6
The next day Glover, Ellegood, and maintenance employee
Keith Crouch went to Harp’s office where they had a discus-
sion with him about the Union. Glover and Ellegood testified
about the meeting; Crouch did not testify. Glover testified
that Harp told the three employees that he would answer
their questions, but that he would not be asking them any
questions (and he did not). Glover testified that the employ-
ees told Harp about several of their grievances, including
having to work too many hours a week. Harp told the em-
ployees that Respondent was trying to cut down on the
hours. Glover asked Harp if Respondent was eliminating the
noon to 8:30 p.m. shift, as he had heard from other employ-
ees. Harp replied that ‘‘as far as he knew they wasn’t. . . .
[H]e said he didn’t know of them ending the second shift
then.’’
Harp testified, but he was asked nothing about this meet-
ing.
Ellegood testified that he could not remember anything of
what Harp had told the employees on June 5.
Glover further testified that during the morning of June 5:
[Bolin] called me to the side and asked my why I want-
ed to be in something I didn’t know anything about.
. . . I told her, ‘‘Well, you know, I may not know ev-
erything about the union, but I know enough that I
thought I was interested in it.’’ And then she sort of
repeated . . . . [t]hat the plant would close if the union
come in there . . . and that it wasn’t too good.
The complaint alleges that on or about June 5, in violation
of Section 8(a)(1), Respondent, by admitted Cutting Super-
visor James Harper, coercively interrogated an employee and
threatened the employee with plant closure, reduction of pay
to the minimum wage, loss of seniority rights, and termi-
nation of other benefits, if the employees selected the Union
as their collective-bargaining representative.
Smith testified that ‘‘a couple of days’’ after Peters was
discharged, when he was again in the pull test area, he was
approached by Harper. According to Smith
He . . . asked me why I wanted the Union. I told
him I wasn’t real sure that I did. And he said, ‘‘Well,
I . . . been in a union and I’ve been against a union
being a part of management. . . . I can tell you it never
did do me a whole lot of good. I had to pay union
dues.’’ . . . I said, ‘‘Well, I’d rather pay union dues
and make more money than not have one.’’
. . . .
And he said . . . if the union did come in there that
the owner probably would shut the plant down. And if
he didn’t shut the plant down then our wages would go
down to minimum wage and we’d have to fight for ev-
erything. And we’d lose all seniority. The seniority
would start on the day the union got in.
Harper denied threatening any employees; he was not asked
specifically what, if anything, he had said to Smith.
Ellegood testified that after Peters was fired, ‘‘they moved
me from welding into setup in the press line’’ so that Re-
spondent, as it had done before, continued its operations with
three setup personnel. Ellegood further testified that Gene
Lay, who had been hired on May 29, was trained to do set-
ups while Peters was still employed. Smith also testified that
Ellegood took over Peter’s setup duties after Peters was dis-
charged. Smith testified that, before Ellegood took on Peters’
setup duties full time, ‘‘I just went over to help out when-
ever they got behind.’’ Smith further testified that he did not
work much overtime during the summer of 1990, ‘‘but to-
wards September we started working 15 hours a day.’’ Fi-
nally, Smith testified that the rest room pass policy for main-
tenance employees lasted for ‘‘about a week’’ after Peters
was discharged. Glover testified that the policy lasted ‘‘[t]wo
or three weeks, maybe. It could have been a little longer.’’
2. Discharge of Wilson
Wilson began working as a production line inspector on
May 2, and she was discharged on June 5 by admitted Qual-
ity Control Supervisor Kathy Gardner.
Wilson was assigned to the 7 to 3:30 shift, but she regu-
larly worked until 6 p.m. during her 5-week tenure. Wilson’s
job was to check harnesses as they progressed by her work
station on a conveyer-belt assembly line. After Wilson’s in-
spection function, the harnesses were sent to the molding de-
1019ELECTRO-WIRE TRUCK PRODUCTS
4 At trial, the General Counsel added an allegation that Vicki Hall
was a quality control supervisor. Obviously, Wilson did not consider
Hall to be her supervisor.
partment where grommets were attached. (The grommets cre-
ate a seal when a harness is placed through a truck’s fire-
wall.) Then the harnesses went to a final inspection area be-
fore packaging for shipment.
Wilson attended the Union’s meeting on June 3, and she
wore a UAW T-shirt, with a UAW button on it, to work on
June 4 and 5.
Wilson testified that on June 4, about 3 p.m., as she was
working, she was approached by admitted Supervisor Glenn
Roberts whom she had never met. The two engaged in a
conversation during which Wilson asked Roberts who he
was. Roberts identified himself as the second-shift quality
control supervisor. According to Wilson:
He approached my work area and started asking me
about what I had done and how I performed my job,
checking the harness itself and I answered his questions
and at the end of the conversation he asked me if we
was having a union drive. And I said, ‘‘I can not talk
on company time.’’ . . . He said he knew that and
walked off.
On the basis of this testimony the complaint alleges a vio-
lative interrogation. Roberts did not testify, and Wilson’s tes-
timony stands undenied. Although Respondent’s answer ad-
mits that Roberts was a quality control supervisor, Gardner
was firm that Roberts was a production-line supervisor, not
a quality control supervisor. (At trial, when Gardner was told
that Respondent had admitted that Roberts was a quality con-
trol supervisor, Gardner said that the answer was in error.
Gardner was probably right, no matter what Roberts told
Wilson; this would explain why quality control department
employee Wilson did not know who Roberts was when Rob-
erts confronted her.)
Wilson testified that during the day on June 4, quality con-
trol technician Vicki Hall approached the inspectors and said
that, from then on, inspectors had to get passes from the su-
pervisors in order to go to the restroom. Wilson testified that
the inspectors had never before been required to have such
passes. Current employee, and inspector, Peggy McCullough
corroborated Wilson’s testimony in this regard. McCullough
further testified that the restroom pass requirement was
dropped after about a month.
The complaint does not allege the implementation of a dis-
criminatory restroom pass policy in the quality control de-
partment, as it does in regard to the maintenance department.
However, Respondent’s witnesses testified fully about the
issue, and I find that the matter was litigated pursuant to the
express allegation of the complaint. Therefore, it must be de-
cided if the June 4 implementation of a restroom pass policy
for the quality control department violated Section 8(a)(3).
Wilson testified that on June 5, about 3 p.m., she was ap-
proached at her work station by her ‘‘immediate supervisor’’
Gardner.4 According to the undenied testimony of Wilson,
Gardner asked Wilson to follow her to the lunchroom, which
Wilson did. Present as a witness in the lunchroom was Bolin.
Gardner read the ‘‘Employment At Will’’ section of Re-
spondent’s employee handbook to Wilson. That section
states:
Employment at Electro-Wire Truck and Industrial Prod-
ucts Group is for an indefinite period of time and is ter-
minable at any time, with or without cause being
shown, by either the employee of the employer.
Gardner asked Wilson if she understood. Wilson said that
she did. Bolin asked if Wilson would sign a voluntary leave
slip. Wilson said that she would not. Gardner escorted Wil-
son out of the plant.
Wilson denied that she was ever told why she was being
discharged; that testimony is not disputed. Wilson further de-
nied ever being told that she needed to do better work; that
testimony is disputed.
Current employee Peggy McCullough testified that a few
days after Wilson was discharged, she witnessed a conversa-
tion that included Vicki Hall and several other employees.
McCullough testified:
She [Hall] just said that she [Wilson] was just let go.
And then the T-shirt came up in the conversation. . . .
I can’t really exactly tell you what words, but I do re-
member her saying something about her T-shirt.
General Counsel alleges, and Respondent denies, that Hall is
an agent of Respondent withinthe meaning of Section 2(13)
of the Act. The General Counsel contends that, as an agent
of Respondent, Hall made a statutory admission when Hall
referred to ‘‘the T-shirt.’’ I find this testimony of
McCullough to be so ambiguous as to be meaningless, re-
gardless of whether Hall could have made admissions that
would bind Respondent.
3. Turocy’s testimony
Charles Robert Turocy Jr., who was still employed by Re-
spondent at time of trial, testified that ‘‘three days’’ after the
Union passed out literature announcing a union meeting at a
truckstop in Campbellsburg, he and employee Laura Fewell
had a meeting with Harp. On direct examination, Turocy was
not specific about the date, but on cross-examination he testi-
fied that he first learned about the Union’s organizational at-
tempt in late summer, and he placed his meeting with Fewell
(who did not testify) and Harp in September. According to
Turocy:
[W]e asked [Harp] what the union was about, and we
was told that they wanted money for promises that they
couldn’t keep. . . . And the advice would be, not to
join it if it was at all possible. . . . We asked him
about the man that owned the factory, would he close
the doors down and he said that the man probably did
not care about nobody, that if he wanted to he could
shut them down and nothing would be said.
Harp was present throughout the hearing, and he testified on
other matters, but he did not dispute this testimony by
Turocy.
This conduct by Harp is not alleged as an independent vio-
lation of Section 8(a)(1). The complaint does allege an un-
lawful threat of plant closure by Harp in ‘‘May or June,
1990.’’ Turocy was confident that his meeting with Harp was
1020 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In answering counsel’s questions, Kelly made no reference to the
‘‘minishift’’; Gardner testified that the minishift was eliminated
about the time she became a supervisor, a date she set firmly at May
1.
in September. Much of the alleged violative conduct hap-
pened 3 days after the Union passed out literature announc-
ing a meeting at a union hall in Carrollton, but that meeting
was on June 3. Turocy was sure that the exchange with Harp
happened 3 days after the Union announced a meeting at a
truckstop in Campbellsburg, obviously a different union
meeting. There being no evidence of any threat by Harp in
‘‘May or June, 1990,’’ I shall recommend that that allegation
be dismissed.
However, the evidence of Harp’s undenied threat must be
considered in deciding if the General Counsel has presented
a prima facie case of discrimination against Peters and Wil-
son.
C. The Defense
1. Denials of the alleged 8(a)(1) conduct
Bolin first testified that on June 4 the ‘‘ladies’’ in her de-
partment had several questions about the Union’s organiza-
tional attempt and what might happen. She testified that she
told them of her prior (bad) experiences with a union at Re-
spondent’s Shelbyville, Kentucky, plant. Bolin was asked and
testified:
Q. Did you have discussions with other individuals
that way—that day as well? Did some of the men have
questions for you about your experience at Shelbyville?
A. Well, some of the guys, I don’t remember who
all it was, was around the pull test table and Gary
Woody was talking with them whenever that I walked
up and they were questioning him and talking about the
union and stuff and I ended up into that conversation.
The best I can remember Gary asked me something
about telling them what happened at Shelbyville be-
cause he wasn’t at the Shelbyville plant whenever that
the union business was going on down there. And he
wanted me to tell them from my experience what went
on down there.
Q. And did you share with them your experience of
what happened down there in Shelbyville?
A. Yes.
Q. Did you, at any time on that day of June 4, 1990,
interrogate anybody or ask anybody questions that
weren’t in a discussion with you about how they felt
about the union?
A. Not to my knowledge. I don’t remember if I did.
Bolin was not asked about any other of the remarks attrib-
uted to her.
Harper was asked and testified:
Q. Did you ever make a statement during that day
of June 4, 1990, or any time the next day, which was
Tuesday, June 5, that if the union’s—if the union came
in and the employees voted for the union that the com-
pany would shut down its operations rather than face
the union as such?
A. No, sir.
Q. Did you ever threaten an employee that if they
selected the union and their bargaining representative
that all their benefits would be terminated and their pay
would be reduced to minimum wage?
A. No, sir.
Harper testified that Dominique Glover approached him at
some point and asked if he, and others, could go to talk to
Harp about the employees’ grievances.
No other testimony was offered by Respondent in the way
of denials of threats, interrogations or solicitation of griev-
ances.
2. Defenses to the 8(a)(3) allegations
a. Reasons for Peters’ discharge
Respondent called Plant Superintendent Larry Kelly to ex-
plain the reason for Peter’s discharge. The relevant examina-
tion on direct examination was:
Q. Do you recall discussing with Mr. Harp and per-
haps some of your managers on Saturday, June 2nd, the
question of whether the twelve to 8:30 shift would con-
tinue and perhaps a discussion of the mini-shift which
ran from 4:30 to 8:30 as well?5
A. Yes. . . . The concerns were addressed were that
the—our conversations with the supervisors we had ini-
tiated the—what we called the split shift to support a
final assembly operation.
And the supervisors were advising me that there was
no longer a need for the split shift, that they were able
to support it with the first shift.
. . . .
But when the decision was made to eliminate the
split shift, then that necessitated one less set-up man.
Respondent called Woody, Peter’s direct supervisor, who
testified about his discharge of Peters:
There was probably only five or six people standing
around over to the pull test machine and they was all
over there standing, talking. Probably about quarter till,
twenty till time to go home.
And I walked up to him and they was all standing
talking. I think I said something to the effect, he prob-
ably, I probably wouldn’t need him anymore and to
hand in his tools and have them checked off to make
sure they was all there. . . . Well, a bunch of them said
it was be cause he had a button on. And I said, no, it
ain’t got nothing to do with it. I just told him—pulled
up—they got a chart here that they write down what
they do.
I turned it around and looked at them and said, you
all done ten set-ups today with three men. One man can
do that in half a day. I said, there’s no sense in needing
three people. So, I told him we was going to have to
let him go.
Respondent’s employee handbook states that all job classi-
fications are divided into ‘‘direct’’ and ‘‘indirect’’ labor de-
partments, and layoffs will be conducted ‘‘on the basis of se-
niority and qualifications with the employee with the least
seniority being laid off first out of the departments being re-
duced.’’ Maintenance is an indirect labor department. n di-
1021ELECTRO-WIRE TRUCK PRODUCTS
rect examination, after being asked to confirm what the
handbook says in this regard, Kelly was asked:
Q. And is it true that seniority is by department and
within classification within that department?
A. Yes.
No other supervisor (or employee) testified that seniority was
by classification, as well as by department, and Respondent
offered no documentation to that effect.
Peters was not the maintenance department employee with
the least seniority. Gene Lay, who was hired on May 29, had
less seniority than Peters who was hired on May 7. Woody,
the direct supervisor of the department, was not asked why
Lay was retained and Peters was discharged. Kelly was
asked about Lay, but Kelly did not remember Lay. On being
shown by his counsel Respondent’s exhibit which listed Lay
as ‘‘Gen. Maintenance,’’ Kelly testified that general mainte-
nance employees are required to have some abilities at weld-
ing, and electrical and construction work, and setup employ-
ees are not.
b. Reasons for Wilson’s discharge
(1) Testimony of Respondent’s witnesses
Gardner had six inspectors under her supervision, three on
the production lines, and three in final inspection. On direct
examination, Gardner testified that Wilson was supposed to
stay at an inspection board at her work station.
Respondent provides production line inspectors with tape
measures. Gardner testified that there is a sign on the inspec-
tion board that specifically states that measurements are to be
checked with a tape measure, and against a blueprint, as well
as checked by holding a harness against the board. Gardner
testified that she had instructed Wilson to use the tape meas-
ure and the blueprint as she worked.
Gardner testified that Wilson did not have Respondent’s
tape measure when she was discharged. Respondent points to
Wilson’s lack of possession of the tape as evidence of a non-
caring attitude toward her work. Wilson admitted that, at the
time of the discharge, she did not have the tape measure.
Wilson testified that she told Gardner that, when she came
back for her last paycheck, she would bring in the tape
measure. Wilson further testified that the only use that she
ever made of the tape measure was to see that the inspection
board was laid out according to the blueprints.
Gardner testified that on May 29, Respondent’s liaison
with the Louisville Ford plant ‘‘brought us in some harnesses
that were bad that had went through [Wilson’s] station. They
had made it all the way to Ford and they were inoperable.
They could not use them. . . . I took her back one of the
harnesses that had come back from Ford and I showed her
what was wrong with it and asked her if she’d please stay
in her station. ‘‘Further according to Gardner, she composed
and entered into Wilson’s personnel file the following
memorandum which is dated ‘‘5–29–90’’:
Melissa
Took aside to talk about her talking to others and not
getting her work done correctly. I took her [sic] a har-
ness back to her that was real bad. It was one that she
had already checked 100, and missed everything.
Gardner testified that Wilson said nothing when she rep-
rimanded Wilson on May 29. On cross-examination, Gardner
added that this was the second time that she had spoken to
Wilson about the quality of her work.
Gardner was asked on direct examination ‘‘what observa-
tions’’ she had made about Wilson’s performance. Gardner
responded, ‘‘I had numerous complaints that she would not
stay at her work station.’’ Gardner testified that other em-
ployees and supervisors complained that Wilson walked
around the plant and interfered with the production work.
The only supervisor she named was Roberts. She was asked
and testified:
Q. And, as best you recall, what was the nature of
Mr. Robert’s complaint?
A. That she wasn’t checking the harnesses the way
she should and that she wasn’t where she was supposed
to be.
Gardner was asked if she had discussed with Hall ‘‘any
problems with Melissa’s performance with respect to inspec-
tion.’’ Gardner responded that Hall kept records which indi-
cated that Wilson was missing ‘‘quite a bit of stuff and that
they’d been finding it back in final audit.’’ Gardner did not
testify that Hall stated that Wilson wandered away from her
work station.
Gardner was asked on direct examination:
Q. What happened on June 5, 1990 with respect to
Miss Wilson’s employment and your involvement in
that?
A. Mark Oshanski, our liaison for Ford, brought
back a harness that Melissa had checked that had a con-
nector on backwards and it would not mate to its mat-
ing part. . . . The connector has a front view and a
back view and we put the wire in the back view and
the mating connector goes into the front view. She had
the connector turned around with the wire going into
the front view.
Q. Were there any other problems with the harness?
A. With that one? No.
Q. What did the gentleman from Ford [Respondent’s
employee Oshanski] say about the harness when he pre-
sented it to you?
A. Only that the people in the [Ford Louisville plant]
line were very upset that they’d gotten it.
Q. What, if anything, did you do as a result of these
points being made by Mr. Oshanski to you on that day
of June 5, 1990?
A. I talked it over with Tex and then me and Betty
Bolin took her into the lunchroom and read the employ-
ment at will act to her.
Q. What did you discuss with Mr. Harp on that day
of June 5?
A. I asked if it was all right if we let her go because
she wasn’t working out.
Q. Why did you want to let her go? What was your
motivation? What were your reasons?
A. Because we kept finding harnesses back in final
audit coming from her section that were not checked
right [Tr. 246].
. . . .
1022 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. Because we had asked prior if we could let her
go, at a prior date, when we had another harness that
was bad. And Tex told us to give her another chance.
Q. And did he give any reason why he wanted to try
to give her another chance?
A. Because she was still new. [Tr. 255.]
Q. [W]hy did you decide to terminate her employ-
ment on June 5, 1990?
A. Because that was the day that Mark Oshanski
brought in the harness with the reversed connector. [Tr.
248.]
Oshanski was not called to testify; Harp testified, but he was
not asked anything about Wilson’s discharge.
Hall identified certain documents purporting to indicate
that final inspection caught many things that production in-
spectors did not; Hall acknowledged that the records did not
indicate which errors had been made by Wilson.
Gardner testified that there were forms that Wilson would
fill out each day that would reflect the errors that she found,
but no such records were produced. Gardner testified that
each harness has a tag that identifies which production in-
spector had inspected it, but that there would be no record
of which final inspector(s) had inspected it.
(2) Rebuttal on Wilson’s discharge
The General Counsel called Peggy McCullough who was
employed by the Respondent at time of trial, but was on
medical leave. McCullough testified that about November
1990, or several months after Wilson was discharged, she
worked as an inspector in final audit, and employee John
Baker worked as line inspector. McCullough testified that
she and other final inspectors complained to management
about Baker’s work. Specifically:
We just told them that there was some harnesses com-
ing back that hadn’t been inspected that should have
been inspected or that they were inspected, but not in-
spected properly.
McCullough also testified that Baker would wander away
from his work station and the final inspectors also com-
plained to supervision about that.
In response, Respondent questioned Gardner about Baker:
Q. And how would you describe his [John Baker’s]
performance, including what may be the good and the
bad points.
A. He was slow at learning how to read the blue-
print, but he caught on to the board really fast. And I
didn’t have any complaints, to me, that he wasn’t doing
his job.
Q. Did you receive complaints that he would visit
with his girl friend from time to time?
A. Yes, I did. And I took disciplinary action on him.
Q. Did it change after that time?
A. Yes, it did.
Q. If you were to compare the performance of John
Baker with that of Miss Wilson, what would you have
to say in terms of describing the performance of each?
A. He’s more worried about what he’s doing. He al-
ways asks questions and if I can’t answer them, he’s
always willing to go the next step higher and ask some-
body else. He’s always willing to do whatever I ask
him to do.
Q. How does that contrast, if at all, with your experi-
ence with Miss Wilson?
A. She never asked any questions. And she was
never at her inspection board where she was supposed
to be.
Further as evidence of discriminatory treatment, the Gen-
eral Counsel points to his examination of Gardner about em-
ployee Ron Stark. Gardner admitted that ‘‘some things’’ that
Stark had inspected had been sent back from Ford. On redi-
rect examination Gardner was asked to compare Stark’s per-
formance with Wilson’s. Gardner testified: ‘‘When Ron
wanted to work, he did and he did a real good job. He
caught everything he was supposed to catch.’’ There is no
evidence that Stark was disciplined in any way for his defi-
cient inspections of harnesses that were returned by Ford.
On cross-examination Wilson denied that Gardner had
ever told her that she had not been doing her work correctly,
denied that Gardner had ever told her that a harness that she
had inspected was in bad shape or that any had been returned
from Ford, and Wilson denied ever being told that she
should do better at staying at her work station. Wilson did
admit that she was never complimented about her work.
On redirect-examination Wilson testified that 2 weeks be-
fore her discharge, when she had left her inspection area to
go help on the production line, Hall told her that ‘‘Larry
Kelly might not like me down there and might think I might
be disturbing the [production] workers.’’ Later in the day she
saw Kelly and:
I asked him if if he’d mind if I was done with my
inspection . . . if I helped the workers . . . get off
them harnesses faster [from the production line], be-
cause they wasn’t getting one off but every twenty min-
utes. [It was supposed to be every 7 minutes.]
And he said he did not mind. He said that he’d rath-
er me do that than sit around and twiddle my thumbs.
Kelly did not deny this response to Wilson when he testified.
Wilson further testified that, in the course of her work, she
filled out records that indicated which harnesses she had in-
spected.
c. Restroom passes
Gardner, the quality control supervisor, was not asked
about the restroom pass policy for quality control employees.
Nonsupervisor Hall testified that the policy had ‘‘always’’
been that the quality control employees were required to get
rest room passes, and that in ‘‘May or June’’ Kelly told her
to start enforcing it.
Kelly testified that the restroom pass policy had always
existed for all departments, but that some employees, espe-
cially the maintenance department employees, had ignored it
from time to time. Kelly was not asked about any alleged
restroom time abuses by the quality control employees on
June 4. Woody was asked on direct examination and testi-
fied:
Q. In the time frame of late May and early June,
what was the policy, as you actually applied it to the
folks who worked under your supervision, with respect
1023ELECTRO-WIRE TRUCK PRODUCTS
to what might be called plant passes, or rest room pol-
icy?
A. I didn’t know anything about the plant passes
until day was informed we were going to have to start
using because they was getting abused.
Woody did not testify that there was any such alleged abuse
on June 4, and he did not testify that any other supervisor
made any such complaint to him on June 4.
Harper was asked and testified:
Q. Do you recall any specific discussions about that
topic on June 4 or June 5, 1990?
A. I do remember that Betty Bolin was having trou-
ble getting set-up men and she complained to—I don’t
remember who she complained to about not being able
to get pink passes and she was enforcing it in her area
and she couldn’t get—her operators were running out of
work to do and she thought it should be enforced
against the set-up men.
I would say—I’m next to her department and I
would say it’s an on-going problem, okay?
Bolin testified that getting set-up employees to adjust her
department’s machines was ‘‘always’’ a problem, but she did
not testify that there were any such problems on June 4 when
the institution, or enforcement, of the policy in question here
occurred. Also, Bolin did not testify that she sought to get
the restroom pass policy enforced against the maintenance
employees at any point.
D. Conclusions
1. Alleged violations of Section 8(a)(1)
The complaint alleges that a number of threats and interro-
gations were made by different supervisors. The most serious
threat, plant closure, was denied only by one supervisor,
Harper. Even there, Harper was asked only for a generic de-
nial. Harper was not asked if he told Smith, after interro-
gating Smith about why he wanted the Union, that
. . . if the Union did come in there that the owner
probably would shut the plant down. And if he didn’t
shut the plant down then our wages would go down to
minimum wage and we’d have to fight for everything.
And we’d lose all seniority. The seniority would start
on the day the Union got in.
Harper’s omnibus denial is meaningless when viewed against
Smith’s categorical, dramatic, testimony. Smith was fully
credible, and I find and conclude that by these threats, and
by the interrogation that preceded it, Respondent violated
Section 8(a)(1) of the Act.
Bolin did not deny the threats and interrogations attributed
to her. To the extent her testimony can possibly be construed
as containing some form of denials, I discredit it. I found
completely credible the testimony of Glover that, early on
June 4, Bolin told him that Respondent would close the plant
if the employees selected the Union as their collective-bar-
gaining representative, and that choosing the Union as a col-
lective-bargaining representative would be futile. I further
found credible the testimony of Peters, Ellegood, and Smith
that Bolin, late on June 4, threatened the employees gathered
at the pull test table with plant closure and removal if the
employees selected the Union as their collective-bargaining
representative. I further found credible Glover’s testimony
that on the morning of June 5 Bolin again told him that ‘‘the
plant would close if the Union come in there.’’
By each of these threats Respondent violated Section
8(a)(1) of the Act.
I find that, by the undenied interrogation of Wilson by
Roberts, Respondent violated Section 8(a)(1) of the Act.
I find that, as testified by Glover, and corroborated by
Ellegood, that on June 4 Woody told the employees that he
had been sent to find out why the employees wanted a union
and suggested that they present their grievances to higher
management. This action was a solicitation of grievances in
violation of Section 8(a)(1) of the Act.
Finally, I credit Peters and current employees Ellegood
and Smith that Woody told the group at the pull test table
on June 4 that Peters would not be getting discharged but for
his wearing of a union button. As current employees,
Ellegood and Smith are especially vulnerable to employer re-
crimination, and even more so if they were not telling the
truth. Woody was an unimpressive witness, and incredible on
this point and in his denial of his repetition of the threat to
Peters, individually.
Accordingly, I find that that by these threats by Woody,
Respondent further violated Section 8(a)(1) of the Act.
2. Alleged violations of Section 8(a)(3)
In regard to the various allegations of discriminatory ac-
tion, the law is that the General Counsel has initial burden
of establishing a prima facie case sufficient to support an in-
ference that union or other activity which is protected by the
Act was a motivating factor in Respondent’s action alleged
to constitute discrimination in violation of Section 8(a)(3).
Once this is established, the burden shifts to Respondent to
demonstrate that the alleged discriminatory conduct would
have taken place even in the absence of the protected activ-
ity. If Respondent goes forward with such evidence, the Gen-
eral Counsel ‘‘is further required to rebut the employer’s as-
serted defense by demonstrating that the [alleged discrimina-
tion] would not have taken place in the absence of the
employee[s’] protected activities.’’ Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982); approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). The test applies re-
gardless of whether the case involves pretextual reasons or
dual motivation. Frank Black Mechanical Services, 271
NLRB 1302 fn. 2 (1984). ‘‘[A] finding of pretext necessarily
means that the reasons advanced by the employer either did
not exist or were not in fact relied on, thereby leaving intact
the inference of wrongful motive established by the General
Counsel.’’ Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982).
Therefore, the first inquiry is whether the record discloses
a prima facie case of discrimination, or credible evidence
that the Respondent knew of the alleged discriminatee’s
union activity and that its decision to discharge or discipline
employees was motivated, at least in part, by antiunion ani-
mus. Chelsea Homes, 298 NLRB 813 (1990).
Knowledge of the union activities, or sympathies, of Peters
and Wilson is not disputed. Each was wearing union insignia
at the times of the discharges; both were interrogated about
1024 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 According to this record, no other employees were laid off as a
result of the decision to terminate the entire second, or ‘‘split,’’ shift.
their union sympathies or activities before they were dis-
charged. Also not in dispute is the fact that Peters and Wil-
son were the only probationary employees who wore UAW
insignia on June 4 and 5.
There can hardly be stronger evidence of animus than a
simultaneous statement that a discharge would have not oc-
curred but for the union activity of the dischargee. That is
what happened in the case of Peters when Woody told Pe-
ters, in a group and individually, that Peters would not have
been fired but for his wearing of a union button that day. No
such admission was made when Wilson was discharged, but
independent evidence of animus abounds.
As well as the threats and interrogations, and the solicita-
tion of grievances, that were made the subject of the com-
plaint, there is other evidence that animus motivated the dis-
charge of Wilson, as well as Peters.
Such evidence includes: (1) the interrogation of Peters by
Woody; (2) the interrogation of Ellegood by Woody; (3) the
interrogation of Ellegood and Glover by Bolin; (4) Bolin’s
threat to various employees that Respondent would pay them
no more than minimum wage if they selected the Union as
their collective-bargaining representative; (5) Bolin’s threat
to various employees that their wages would be frozen ‘‘until
the plant solved the problem’’ of the Union’s organizational
attempt; (6) the threat by Woody, as well as Bolin, that Re-
spondent would close the plant if the employees selected the
Union; (7) Bolin’s threat that Respondent would withdraw all
benefits based on seniority if the employees selected the
Union; and, most compellingly, (8) the threat by Respond-
ent’s chief personnel officer, Harp, to employees Turocy and
Fewell that, if the employees selected the Union as their col-
lective-bargaining representative
the man that owned the factory . . . probably did not
care about nobody, that if he wanted to he could shut
them down and nothing would be said.
As noted, Harp did not deny the remark attributed to him by
Turocy.
Accordingly, I conclude that the General Counsel has pre-
sented a prima facie case that Peters and Wilson were dis-
charged because of their demonstrated union sympathies.
The first thing to be noted about Peter’s termination is that
Peters was discharged, not laid off.
The complaint alleges a discharge of Peters; the answer
ambiguously admits only that ‘‘Peters’ employment with Re-
spondent was concluded.’’ At the moment of discharge, Su-
pervisor Woody was asked by Webster: ‘‘Was he terminated
or was he laid off?’’ Woody replied, ‘‘He’s fired.’’ Later in
the day, Woody told Glover that: ‘‘Larry Kelly had told him
to get rid of him.’’
And Peters was treated as if he had been fired. Even when
the employees started working overtime 15 hours a week in
the fall of 1990 (when the annual automotive change-over
period had ended), Peters was not called in to work. Re-
spondent offers no explanation for its failure to recall Peters,
assuming that Peters was laid off.
A one-employee layoff is an inherent improbability,6 but,
assuming that Peters was laid off, Respondent offers no ex-
planation of why Peters had to be laid off on June 4. Kelly
testified, ‘‘when the decision was made to eliminate the split
shift, then that necessitated on less setup man. ‘‘But the split
shift was not eliminated until June 16; Respondent suggests
no reason of why ‘‘Peters’ employment with Respondent was
concluded’’ 2 weeks before then.
No reason for a layoff has been advanced. Although work
for the maintenance employees was comparatively slack on
June 4, the maintenance employees had been complaining
before that date, and they continued to complain after that
date, that they were being required to work excessive hours
(10 and up) each day. Also, after his discharge, Respondent
was required to shuffle other employees around to cover for
the absence of Peters (an obvious demonstration of the
fungibility of employees in the maintenance classifications
that Kelly sought to deny).
Finally on this point, if Respondent did conduct a one-em-
ployee layoff in the case of Peters, it went out of its estab-
lished, written, seniority policy to reach him. The policy as
stated in Respondent’s handbook is that layoffs will be by
departmental seniority. However, Peters had more seniority
than employee Lay, who had been on the job only 3 days.
Kelly was blatantly led to testify, incredibly, that seniority
was also by classification, but in absence of any documen-
tary or testimonial corroboration, the Board cannot accept
such bare statements of justification. (Moreover, assuming
that there was the slightest element of truth in Kelly’s testi-
mony, there was no hint of testimony that Lay actually pos-
sessed any skills not possessed by Peters.)
Respondent offers no reason for discharging Peters; it only
offered testimony that the decision to terminate Peters was
made before Peters wore union insignia to work on June 4.
Kelly was lead to testify, incredibly, that the decision to
end the second shift was at a supervisory meeting that was
conducted on June 2. No other supervisor who was sup-
posedly present at the meeting was called to buttress this tes-
timony of Kelly. As late as Wednesday, June 5, Harp was
denying to employees that any such decision had been made;
see the testimony of Glover, supra. Moreover, if the decision
to terminate the second shift, and one maintenance employee
along with it, had been made on Saturday, June 2, Peters
would have been discharged before putting in a full, 10-hour
day on Monday (the start of a new payroll period). I find
that the supposed Saturday meeting did not happen; if it did,
no decision was made to discharge Peters then.
I find that no decision was made to discharge Peters, the
ostensibly vulnerable probationary employee, until he dem-
onstrated his sympathies by wearing a union button.
I find, and conclude, that the real reason that Peters was
discharged was that he had worn insignia demonstrating
sympathy for the Union, the insignia that caused Woody first
to interrogate Peters, then to emphasize, twice, that the dis-
charge would not have happened if Peters had not worn it.
By the discharge of Peters, Respondent violated Section
8(a)(3) of the Act.
Respondent did come forward with reasons for the dis-
charge of Wilson. Respondent contends that, as a production
line inspector, Wilson was derelict in her work and that she
interfered with the work of others.
Gardner was Respondent’s principal witness on the dis-
charge of Wilson; Gardner was not there to tell the truth, as
evidenced by immediate contradictions in her own testimony.
About Baker, Gardner testified, ‘‘I didn’t have any com-
1025ELECTRO-WIRE TRUCK PRODUCTS
7 Also, in a faint-praise damnation of Stark as an employee, Gard-
ner added, ‘‘When Ron wanted to work, he did, and he did a real
good job.’’
8 The only supervisor who testified that she saw Wilson stray from
her work station was Bolin; Bolin was not one of the supervisors
whose reports Gardner cited. Bolin was incredible on this point, as
well. Bolin testified that Wilson’s activities had caused her entire de-
partment to work overtime. If anything remotely like that had hap-
pened, there would have been better evidence on the point, and
Gardner would have, at least, mentioned it. 9 No copy of any such sign was offered in evidence.
plaints, to me, that he wasn’t doing his job.’’ Then, imme-
diately, Gardner testified that she received complaints about
Baker visiting his girlfriend when he was supposed to be
working. Gardner admitted that harnesses that Stark had in-
spected had been returned from Ford; then she almost imme-
diately stated: ‘‘He caught everything he was supposed to
catch.’’7
Gardner testified about Wilson: ‘‘And she was never at her
inspection board where she was supposed to be.’’ Employers
seldom put, or keep for 30 days, poor employee-material in
quality control jobs. As Respondent’s counsel stated at the
first of the hearing, ‘‘Melissa Wilson was in one of the more
important jobs in the facility.’’ The proposition that Re-
spondent allowed an inferior employee to hold such an im-
portant position for 30 days, and wander around the plant for
30 days, is inherently implausible. But there are other rea-
sons for rejecting the defense.
Gardner testified that she was Wilson’s supervisor for a
full 30 days. However, not once did Gardner testify that she
ever saw Wilson away from her work station when Wilson
should have remained there. When asked what she had ‘‘ob-
served’’ about Wilson’s alleged wanderings, Gardner could
cite only (hearsay, and incredible) reports. The only super-
visor whose report she could cite was that of Roberts. Re-
spondent did not call Roberts, even though he was named in
the complaint as committing an interrogation in violation of
Section 8(a)(1). I would discredit Gardner’s testimony about
getting such a report from Roberts on this basis alone. As
well, it is to also be remembered that Gardner insisted that
Roberts was an production line supervisor, not a quality con-
trol supervisor; because the harnesses necessarily went to in-
spection after being produced, it is unlikely to the point of
disbelief that Roberts ever complained that Wilson8 ‘‘wasn’t
checking the harnesses the way she should,’’ as Gardner tes-
tified.
On the basis of reports, not observations, Gardner con-
cluded that Wilson was ‘‘never’’ at her work station when
she was supposed to be. This testimony was necessarily
false. I find that Respondent’s defense that Wilson was
‘‘never’’ at her work station, or its defense that Wilson was
even chronically missing from her work station, to be a com-
plete sham.
Wilson credibly denied that she was ever warned about her
performance. I am convinced that the ‘‘5–29–90’’ note to
Wilson’s personnel file was a fabrication. Gardner wrote that
Wilson had ‘‘missed everything’’ on a harness, and, as a re-
sult, she asked Harp if she could discharge Wilson. Had
there been any truth to that testimony, Harp would have been
called to corroborate it. As noted, Harp was present through-
out the hearing, and testified on other matters, but he was
not asked to support Gardner, and he was not asked to dis-
pute Wilson’s testimony that she had never been warned.
Moreover, there was no contradiction of Wilson’s testimony
that Plant Manager Kelly personally told Wilson that he
would rather have her going to help on the production lines
than doing nothing at her own work station.
I further do not believe the testimony of Gardner that, on
June 5, Oshanski returned from the Ford plant with a bad
harness that had been inspected by Wilson, and that this was
the sole reason that Wilson was discharged on that date. Cer-
tainly, Respondent’s employee Oshanski was not called to
support Gardner on the issue of timing. Moreover, Gardner
admitted that employee Stark had more than one harness re-
turned from Ford. According to this record, Stark was not
disciplined in any way. Assuredly, if the offense had been
as grave as Respondent sought to portray, Stark would have
suffered some discipline, even if he was past the proba-
tionary period.
Assuming that Wilson did fail to find the one thing wrong
with the harness in question, it is to be noted that the harness
went by at least one final inspector before it was sent to
Ford. Nothing happened to the final inspectors other than a
talking-to, as a group, according to Gardner. Usually, final
inspections are more important than production-line inspec-
tions. I do not believe Gardner’s testimony that, although
derelict production-line inspectors can be identified, Re-
spondent was at a loss to determine which final inspector had
sent the harness on to Ford.
Respondent’s failure to discipline any other employees in-
volved in the alleged production of the faulty harness is evi-
dence that Wilson suffered discriminatory treatment. There is
more of such evidence.
Respondent freely gave written warnings to employees, in-
cluding probationary employees. The General Counsel intro-
duced 10 such warnings during the 9 months that the plant
had been open, including 1 that was given a probationary
employee who was warned that, if any other bad production
was returned from Ford, the employee would be terminated.
Respondent argues that the warning notice step of its pro-
gressive disciplinary system was optional with the super-
visors for probationary employees. However, if Respondent
really had desired better production from an employee ‘‘in
one of the more important jobs in the facility,’’ a written
warning notice would assuredly been tried in Wilson’s case.
Gardner testified that Wilson was required to use a tape
measure constantly, and that there was a printed sign to that
effect at her work station. I reject this hearsay,9 and incred-
ible, testimony. Respondent found out that Wilson was not
using her tape measure after the decision to discharge Wilson
had been made. That is, Wilson had been allowed to work
all day without using it once, and nobody noticed. (Respond-
ent does not contend that Wilson conducted any improper in-
spections on June 4 without using the tape measure.)
Similar to the case of Peters, I believe, and find, that Re-
spondent singled out the one employee in the production
chain that was most ostensibly vulnerable to use as an exam-
ple to other employees who might show union sympathies,
probationary employee Wilson.
I find, and conclude, that the discharge of Wilson was not
designed to get rid of an inferior employee; it was designed
to manifest of Respondent’s great degree of animus to other
1026 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Kelly’s testimony to the contrary was false; even Woody admit-
ted that the use of restroom passes was new to him on June 4.
11 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.
employees who might otherwise share Wilson’s demonstrated
sympathy for the Union.
Accordingly, I find and conclude that Respondent dis-
charged Wilson in violation of Section 8(a)(3) of the Act.
Restroom Passes
Although other departments had required restroom passes
since the plant opened in September 1989, the maintenance
and quality control departments had no such requirement
until Peters and Wilson wore their UAW insignia to the plant
on June 4.10 The interrogations and threats had already
begun when Woody found Peters, Ellegood and Webster in
the restroom. He announced a new pass policy, and, when
the employees ‘‘moaned,’’ Woody responded, it is undenied,
‘‘Well, you should have expected it. It’s probably going to
get worse.’’
In view of the widespread, and serious, expressions of ani-
mus as found herein, reason compels the conclusion that
Woody’s ‘‘you should have expected it’’ remark was a ref-
erence to Respondent’s hostility to the UAW buttons and T-
shirts that were then being worn by the maintenance employ-
ees. However, the processes of deduction need not be taken
even that far. Woody added, ‘‘It’s probably going to get
worse.’’ Woody could not have been referring to alleged
loafing; he could only have been referring to something that
was potentially ongoing, activity on behalf of the Union.
Of further significance is that, to impose the new
workrule, Respondent chose a day when there were only 10
setups to be done (or about one-half day’s work for one man,
according to Woody as he discharged Peters). Respondent’s
testimony that there was a sudden need for such a rule is
therefore, demonstratively false.
As was the case in the maintenance department, the rest-
room pass policy that was imposed on the quality control de-
partment was quickly lifted after the crisis of the union activ-
ity had evidently passed. In view of this factor, and Respond-
ent having adduced no credible need for the sudden imposi-
tion of the rule on the quality control department employees,
I conclude that the animus that caused imposition of the rule
on the maintenance caused the imposition of the rule on the
quality control employees.
I conclude that, by imposing the disciplinary rule regard-
ing restroom passes on the maintenance and quality control
employees, Respondent violated Section 8(a)(3) of the Act.
CONCLUSIONS OF LAW
1. By the following acts and conduct, Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) and Section 2(6) and (7) of the
Act:
(a) Threatening its employees with plant closure and plant
removal in order to discourage its employees from selecting
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, UAW (the Union),
as their collective-bargaining representative.
(b) Interrogating employees about their union member-
ships, activities and desires.
(c) Soliciting grievances of employees in order to dissuade
them from becoming or remaining members of the Union or
giving any aid or support to it.
(d) Threatening employees with discharge because they
displayed union insignia.
(e) Threatening its employees with termination of seniority
rights, reduction of wages, and loss of other benefits in order
to discourage its employees from selecting the Union as their
collective-bargaining representative.
2. By the following acts and conduct, Respondent has en-
gaged in unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) and Section 2(6) and (7)
of the Act by:
(a) Discharging Kenneth ‘‘Don’’ Peters because of his
union membership, activities or desires.
(b) Discharging Melissa Wilson because of her union
membership, activities or desires.
(c) Imposing disciplinary rules on employees in order to
discourage their union memberships, activities or desires.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
The Respondent, having discriminatorily discharged em-
ployees Kenneth ‘‘Don’’ Peters and Melissa Wilson, must
offer them reinstatement and make them whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest to be
computed as specified in New Horizons for the Retarded,
283 NLRB 1173 (1987).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Electro-Wire Truck & Industrial Products
Group, Campbellsburg, Kentucky, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with plant closure or plant
removal in order to discourage its employees from selecting
International Union, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, UAW (the Union),
as their collective-bargaining representative.
(b) Interrogating employees about their union member-
ships, activities or desires.
(c) Soliciting grievances of employees in order to dissuade
them from becoming or remaining members of the Union or
giving any aid or support to it.
(d) Threatening employees with discharge if they display
union insignia or give other aid or support to the Union.
(e) Threatening employees with termination of seniority
rights, reduction of wages, or loss of other benefits in order
1027ELECTRO-WIRE TRUCK PRODUCTS
12 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.’’
to discourage its employees from selecting the Union as their
collective-bargaining representative.
(f) Discriminating against employees, by discharging them
or by imposing disciplinary work rules on them, in order to
discourage their union activities, memberships, or desires.
(g) 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 Kenneth ‘‘Don’’ Peters and Melissa Wilson im-
mediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously 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 decision.
(b) Remove from its files any reference to the unlawful
discharges of Kenneth ‘‘Don’’ Peters and Melissa Wilson
and notify them in writing that this has been done and that
their discharges 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 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 Campbellsburg, Kentucky facility copies of
the attached notice marked ‘‘Appendix.’’12 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees 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.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT threaten you with plant closure or plant re-
moval in order to discourage you from selecting International
Union, United Automobile, Aerospace and Agricultural Im-
plement Workers of America, UAW (the Union), as your
collective-bargaining representative.
WE WILL NOT interrogate you about your union member-
ship, activities or desires.
WE WILL NOT solicit grievances from you in order to dis-
suade you from becoming or remaining members of the
Union or giving any aid or support to it.
WE WILL NOT threaten you with discharge if you display
union insignia or give other aid or support to the Union.
WE WILL NOT threaten you with termination of seniority
rights, or reduction of wages, or loss of other benefits in
order to discourage you from selecting the Union as your
collective-bargaining representative.
WE WILL NOT discriminate against you by discharging you
or by imposing disciplinary work rules on you, in order to
discourage your union activities, memberships, or desires.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of your rights that are
guaranteed to you by Section 7 of the Act.
WE WILL offer Kenneth ‘‘Don’’ Peters and Melissa Wilson
immediate and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or any other rights
or privileges previously enjoyed, and WE WILL make them
whole, with interest, for any loss of earnings and other bene-
fits suffered as a result of our discrimination against them.
WE WILL remove from our files any reference to the un-
lawful discharges of Kenneth ‘‘Don’’ Peters and Melissa
Wilson and notify them in writing that this has been done
and that the discharges will not be used against them in any
way.
ELECTRO-WIRE TRUCK & INDUSTRIAL PROD-
UCTS GROUP