Evans Products Co.

National Labor Relations Board - Board Decisions

Apr 2, 1975

217 N.L.R.B. 257 (N.L.R.B. 1975)

MONON TRAILER, INC.
Monon Trailer, Inc., Division of U.S. Railway Manu-
facturing Company, a wholly owned Subsidiary of
Evans Products Company and United Steelworkers
of America , AFL-CIO-.CLC
MTM Union, Inc., and Its Successor, MTM Union,
Inc., affiliated with United Brotherhood of Carpen-
ters and Joiners of America , AFL-CIO and United
Steelworkers of America , AFL-CIO-CLC. Cases
25-CA-5885, 25-CA-5885-2-3, and 25-CB-1854
April 2, 1975
DECISION AND ORDER
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On August 16, 1974, Administrative Law Judge
Abraham H. Maller issued the attached Decision in
this proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief; and Respondent
Company filed exceptions, a supporting brief, and an
answering brief; and Respondent Union filed a re-
sponse to the General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
We accept the Administrative Law Judge's view of
the record with respect to the discharge of Pasdach. On
an occasion when employee Black was being criticized
by leadman Allen for faulty work, for which even our
dissenting colleague agrees he was properly suspended,
Pasdach injected himself in the matter and, though
twice ordered to return to work by Allen, who was
obviously authorized to issue such an order, Pasdach
refused. This was insubordination for which, all must
agree, an employee could be discharged. And we do not
believe that the General Counsel has established by a
preponderance of the evidence that Pasdach was not
discharged for this reason but, rather, was discharged
for unlawful reason.'
I With respect to the dissent's proposed finding that Pasdach was earlier
issued written warnings for a discriminatory reason in violation of Sec
8(a)(1) of the Act, the Administrative Law Judge has made no factual
findings in this connection and the General Counsel has not expressly
excepted to the Administrative Law Judge's failure to fmd an 8(a)(1) viola-
tion here
ORDER
257
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge and hereby orders that
Respondent Monon Trailer, Inc., Division of U.S. Rail-
way Manufacturing Company, a wholly owned Sub-
sidiary of Evans Products Company, Monon, Indiana,
its officers, agents, successors, and assigns, and Re-
spondent MTM Union, Inc., and its successor, MTM
Union, Inc., affiliated with United Brotherhood of Car-
penters and Joiners of America, AFL-CIO, Monon,
Indiana, its officers, agents, and representatives, shall
take the action set forth in the said recommended Or-
der.
MEMBER FANNING, dissenting in part:
For the most part I agree with the Administrative
Law Judge's Decision.' However, contrary to my col-
leagues and the Administrative Law Judge, I would
fmd Pasdach's discharge violative of Section 8(a)(3). In
fact, I find it difficult to imagine a stronger case for
finding a pretextual 8(a)(3) violation.
As early as August 15, 1973, before Pasdach had
contacted the Steelworkers, McCormick, who was Pas-
dach's supervisor at the time of his discharge, told him,
"you don't want those damn Steelworkers," and con-
cluded after further discussion, "well if you don't like
it here you can get your ass out." On October 2, 1973,
a meeting set up by Pasdach was held with the Steel-
workers; 10 employees attended and signed cards.
Thereafter Pasdach, Eisele, and Black began soliciting
for the Steelworkers. Buckley, the MTM president, was
solicited by Pasdach and signed a Steelworkers card,
"so he could keep the Steelworkers' drive under surveil-
lance." In October 1973, a petition was circulated
among the employees to oust Pasdach from the MTM.
In addition, an MTM director, Francis Allen, solicited
suspected Steelworkers advocates for admissions that
they had signed Steelworkers cards under threat of
discharge; the Administrative Law Judge found that
such a threat by Francis Allen to employee Krugger
was violative of Section 8(b)(1)(A). Shortly thereafter
the MTM board of directors voted 5-0 to oust Pasdach
from membership.
On October 17, 1973, the Steelworkers filled unfair
labor practice charges against the Company. There-
after, on October 22, 1973, Jackson, company presi-
dent, called an employee meeting to discuss the charges
2 Contrary to the Administrative Law Judge, I do consider the MTM's
use of the Xerox machine and holding one meeting on, company property
to be a technical violation of the Act. I therefore find it unnecessary to
conclude as did the Administrative Law Judge that if a violation it is de
mtmmrs.
217 NLRB No. 44
258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and to point out the disadvantages of the Steelworkers
versus MTM. Pasdach arose and responded to Jack-
son's statements and the resultant exchange ended with
Jackson walking out in anger saying, " I ain 't got time
for this bullshit." At a similar -meeting at the Com-
pany's Royalwood facility, Jackson in an obvious refer-
ence to Pasdach said it had taken him 17 years to build
up the Company and an employee who had not been
there for a year "was tearing it all down, creating prob-
lems."
How far certain employees, the MTM, and the Com-
pany were willing to go to rid themselves of Pasdach,
however, did not become apparent until November 21,
1973, when Pasdach attempted to return to the plant
after lunch. On that occasion a group of employees led
by Bob Allen, a former MTM president and brother of
Francis Allen, blocked Pasdach's entrance to the plant
just outside the company gate and threatened him that
it would not be healthy for him to come to work. Stahl,
a director of MTM, was a participant in the incident,
according to the Administrative Law Judge's findings.
Swisher, the guard at the nearby truck gate and a for-
mer director of MTM, did not investigate_the.disturb-
ance.
Also present was Francis Allen, who, the Adminis-
trative Law Judge found, was there to oversee the inci-
dent. Francis Allen was the brother of the leader of the
block-out, a director of MTM, president of MTM after
December 12, 1973, and Pasdach's leadman when he
was fired; Pasdach was, in fact, fired for being insubor-
dinate to Francis Allen. Francis Allen, discredited by
the Administrative Law Judge, testified that although
he was not working he had come to the plant to talk
to MTM President Buckley; yet, after observing the
incident he inexplicably left without attempting to see
Buckley.
After being blocked, Pasdach telephoned Plant Su-
perintendent Griffin and told him not only that the had
been blocked but by whom. Griffin later called Pasdach
back and asked him if the incident occurred on com-
pany property. When Pasdach said "no" but just out-
side the gate, Griffin said he could not be responsible
for what happened off company property; he also told
Pasdach that the Company would not tolerate such
actions and he would guarantee Pasdach's protection if
he returned to work.
Pursuant to Griffin's promise Pasdach attempted to
return to work on November 23, 1973, the day after
Thanksgiving, but was again blocked and threatened by
the same employees. On this occasion, the blockers
closed half of the gate to the parking lot. Nonetheless,
in spite of Griffin's promise, no management officials
were present nor was the disturbance investigated by
the plant guard. Pasdach again left and telephoned
Company President Jackson who told him he could not
be responsible for what happened off company prop-
erty. In his testimony Jackson admitted that he had
heard rumors of Pasdach's block before it happened.
Jackson took no action to prevent the block-out. And
although Pasdach furnished the names of those who
had blocked him out, not only was no investigation
conducted but nothing was said to the employees in-
volved. The Company's contention that it could not
control what happened at its parking lot gate is totally
absurd. In any event, the Company took no action until
it received a letter from the Steelworkers advising it of
its legal responsibilities. However, even then the Com-
pany merely wrote the Steelworkers saying it could not
police its employees off company property, and that it
would deal with misconduct but could not guarantee
such misconduct would not occur. MTM, on the other
hand, only posted a notice to its members 2 days after
Pasdach returned to work.
The Administrative Law Judge, as more fully set
forth in his Decision, found the Company and MTM
jointly and severally responsible for blocking Pasdach's
entry into the plant on November 21 and 23, 1973, and
that the Company's conduct was violative of Section
8(a)(3) and (1) while MTM's conduct violated Section
8(b)(1)(A).
After Pasdach returned to work, the pressure on him
was not significantly decreased. Thus, on January 2,
1974, he received a written warning for absenteeism
although his last absence had occurred 2 weeks before.
Pasdach's - absence record, attached to the warning,
shows that all of his absences, with minor exceptions
and the period he was blocked out of the plant, were
for reasons permitted under the contract and were pre-
sumably excused. In my opinion, this warning shows
the Company was still harassing Pasdach or was intent
on setting him up for discharge by the manner in which
the period Pasdach was blocked out was recorded by
the Company. Thus, although Pasdach had called in
twice concerning the block-out and the Company
therefore knew why he was not at work, on his work
report for that period the Company had written "no
report" and had checked the column marked "did not
call in." Pasdach was issued a similar warning in Feb-
ruary. On these facts, I would find that the issuance of
the written warnings constituted discriminatory
harassment of Pasdach in violation of Section 8(a)(1).
Pasdach was ill for 2 weeks in February, one of
which he spent in the hospital. He returned to work on
February 19, 1974. On February 20, he was assigned to
a job which could be performed with either of two
- drills, the so-called newer and older drills. Pasdach
started with the newer drill but upon encountering
problems with hole alignment switched to the older
one. Three witnesses testified that the newer drill was
MONON TRAILER, INC 259
malfunctioning; the Company offered no testimony to
the contrary.
Francis Allen, Pasdach's leadman, whose other cre-
dentials have been set forth ,supra, made no comment
concerning Pasdach's choice of drill untill he returned
after lunch at 3 p.m., whereupon he asked Pasdach why
he was using the older drill. Upon receiving Pasdach's
explanation, Allen nonetheless set up the job with the
newer drill. Pasdach protested and was assigned
another job. Allen then put Black, the other remaining
Steelworkers adherent, on the drill. As Black began
using the drill, a clamp popped loose and Black pushed
the drill down the rail where it struck another clamp;
there was no damage to the drill.
At that point Allen rebuked Black and an argument
ensued. Pasdach upon seeing Black standing in anger
with his fist clenched stepped between them to prevent
a fight. He took Black by the shoulders and told him
"to cool down because they wanted to provoke him into
a rash act." Pasdach then turned to Allen who jabbed
him on the shoulder and said, "Go back and do your
job." Pasdach after asking Black if he saw Allen's ac-
tion turned to Allen and said, `You keep your damn
hands off me." Allen again tapped Pasdach on the
shoulder and said, "I'll put my hands on you any time
I want to" and again told Pasdach to return to work.
Pasdach angrily said, "No."
Allen then left and returned with Foreman McCor-
mick who took them to his office, accused Pasdach of
being a troublemaker, and then asked for the facts.
When McCormick asked Pasdach why he had refused
to return to work, Pasdach replied, "To prevent a
fight." The upshot of the incident was that after further
interrogation by other management officials, including
Jackson and Attorney Nyhart, Pasdach was terminated
for insubordination and Black was suspended for 3
days.
In my opinion the Company seized on the incident
of alleged insubordination to Allen by Pasdach to rid
itself of Pasdach. The discharge was thus clearly pre-
textual in nature. Allen was the president of MTM, the
overseer of Pasdach's block-out, and one of the princi-
pals in the attempt to get rid of Pasdach one way or
another. He had solicited signatures against Pasdach
and in his effort to get Pasdach had threatened Krugger
for his Steelworkers activity in violation Section
8(b)(l)(A)•
In my view Allen's conduct with respect to the use
of the new drill was harassment of Pasdach and Black.
Pasdach testified without contradiction that he had
never in the past been criticized for his choice of drills.
The new drill, according to the testimony of three em-
ployees, was not working properly. Pasdach explained
his reasons for using the older drill, but Allen was not
interested. Then, after creating the situation, Allen
chose Black, the other leading Steelworkers adherent,
to replace Pasdach, although to free Black for the job
Allen had to assign Gudeman to Black's job rather than
just assign Gudeman, who had drilled before, to replace
Pasdach.
It is also significant that Allen was not a supervisor
but an employee, albeit a leadman. With regard to his
authority as leadman, Allen testified that he had not
been told prior to the incident what his duties were
except that he was to keep production moving and if
anything hindered' production to report it to his fore-
men. He did not testify that he had authority to harass
anti-MTM employees, to provoke employees into
fights, to assault employees, or tell them he would put
his hands on them anytime he wanted to.
In addition, Pasdach testified without contradiction
that he merely stepped between two employees to pre-
vent a heated argument from becoming a fight.'
When assaulted by Allen, he refrained from physical
response despite ample provocation.
Any doubt that the Company's treatment of Pasdach
was discriminatory is dispelled by the the treatment of
Pasdach after McCormick arrived on the scene. For
McCormick, who had earlier- expressed his feelings
about the Steelworkers to Pasdach, without knowing
the facts, immediately berated Pasdach for being a
"troublemaker," and then asked for the facts. The
Company wanted to get rid of Pasdach. It had allowed,
if not encouraged, his being blocked out of the plant.
Finally, it seized upon this minor incident where, in
fact, Pasdach was trying to prevent rather than to cause
trouble and used it to get rid of its acknowledged neme-
sis. I would find Pasdach's discharge violative of Sec-
tion 8(a)(3).
3 I agree with the General Counsel that, in the circumstances of this case,
Pasdach's making common cause with Black was protected activity. Pas-
dach and Black were the leaders of the Steelworkers drive Pasdach, due to
prior events, had reasonable cause to believe Black was being unduly
harassed because of his Steelworkers activity and could reasonably fear
Black might do something rash under Allen's provocation and jeopardize his
job. In addition, Allen was the prime mover in previous attempts to get rid
of the Steelworkers and Pasdach. In conclusion since Pasdach was obviously
concerned with protecting the job of a fellow Steelworkers supporter, his
action could reasonably be construed as protected activity, particularly since
Allen, and not Pasdach or Black, provoked the incident
DECISION
ABRAHAM H. MALLER, Administrative Law Judge: On
March 19, 1974, the Regional Director for Region 25 of the
National Labor Relations Board, herein called the Board,
issued on behalf of the General Counsel an order consolidat-
ing cases, complaint, and notice of hearing against Motion
Trailer, Inc., Division of Evans Products Company, herein
called Respondent Company, and MTM Union, Inc., and its
successor, MTM Union, Inc., affiliated with United Brother-
260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood of Carpenters and Joiners of America, AFL-CIO,'
herein variously referred to as MTM or the Resopndent
Union.' Briefly, the complaint, as consolidated, alleged that
the Respondent Company has - dominated, assisted, con-
tributed to the support of, actively participated in, and inter-
fered with the administration of the MTM Union. It has, by
its supervisors and agents, condoned and ratified the the acts
of certain employees who denied employee James T. Pasdach
access to its facility and thereby prevented him from working
there, and further denied said Pasdach the normal protection
afforded to other employees because he joined and assisted
the Steelworkers. It has interfered with, restrained, and co
erced employees concerning their membership in the Steel-
workers; constructively discharged employee Marvin Eisele
because he joined and assisted the Steelworkers; dis-
criminatorily issued written disciplinary warnings to said
Pasdach and later discharged him; and imposed a discrimina-
tory layoff on employee Ray A. Black because said employee
joined, and assisted the Steelworkers, in violation of Section
8(a)(1), (2), and (3) of the National Labor Relations Act, as
amended (29 U.S.C. § 151, et seq.), herein called the Act.
Against the Respondent Union, the consolidated complaint
alleged that it threatened to cause the discharge of certain
employees if such employees supported the Steelworkers, and
blocked ingress to the facility of the Respondent Company,
in violation of Section 8(b)(1)(A) of the Act. In their duly
filed answers, the Respondent Company and the Respondent
Union, each, denied any violations of the Act.
Pursuant to notice, a hearing was held before me on March
26, 27, and 28, 1974, at Monticello, Indiana, and between
April 23 and May 1, 1974, at Lafayette, Indiana. All parties
were represented at the hearing and were afforded full oppor-
tunity to be heard, to introduce relevant evidence, to present
oral argument, and file briefs with me. Briefs were filed by all
parties on or before July 1, 1974. Upon consideration of the
entire record, the briefs, and upon my observation of each of
the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT COMPANY
Respondent Company is now, and has been at all times
material herein, a corporation with an office and place of
business at Motion, Indiana, herein called the facility.; It is
engaged in the manufacture, sale, and distribution of semi-
trailers and related products. During the year preceding the
' The name of the Respondent Union appears as amended during the
hearing.
2 The original charge in Case 25-CA-5885 was filed by United Steelwork-
ers of America, AFL-CIO-CLC, herein variously referred to as the Charg-
ing Party or the Steelworkers, on October 17, 1973 An amended charge was
filed October 29, 1973 The original charge in Case 25-CA-5885-2 was
filed by the Steelworkers on November 12, 1973 On December 28, 1973,
the Regional Director issued an order consolidating cases, complaint, and
notice of hearing in, Cases 25-CA-5885 and 25-CA-5885-2 The charge in
Case 25-CB-1854 was filed by the Steelworkers on December 3, 1973 On
January 28, 1974, the Regional Director issued an order consolidating cases,
complaint, and notice of hearing in Cases 25-CA-5885, 25-CA-5885-2,
and 25-CB-1854 As indicated in fn 1, the names of the parties were
amended at the hearing
3 The facility consists of a large plant and two small ones, all located in
Monon, Indiana
filing of the complaint herein, which period is representative
of all times material herein, Respondent Company manufac-
tured, sold, and shipped from its facility, finished products
valued in excess of $50,000 to points outside the State of
Indiana. During said period, Respondent Company, in the
course and conduct of its business operations, purchased,
transferred, and delivered to its facility, goods and materials
valued in excess of $50,000 which were transported to said
facility directly from States other than the State of Indiana.
Accordingly, I find and conclude that the Respondent Com-
pany-is, and has been at all times material herein, an employer
engaged in commerce within the meaning of Section 2(6) and
(7) of the Act and that it will effectuate the policies of the
Board to assert jurisdiction here.
II THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America, AFL-CIO-CLC, is, and
has been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
MTM Union, Inc., and its successor , MTM Union, Inc.,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, are, and have been at all times
material herein , labor organizations within the meaning of
Section 2(5) of the Act.
III THE ISSUES
I. Whether the Respondent Company interfered with, co-
erced, or restrained its employeees, in violation of Section
8(a)(1) of the Act.
2. Whether the Respondent Union threatened to cause the
discharge of Darrell Krugger if he did not sign a paper calling
for the ouster of Pasdach from the Union, in violation of
Section 8(b)(1)(A) of the Act.
3. Whether the ouster of James Pasdach from the Respon-
dent Union, voted by its board of directors, violated Section
8(b)(1)(A) of the Act.
4. Whether the Respondent Union threatened to cause the
discharge of Martha Steele, if she posted certain documents
on the bulletin board, in violation of Section 8(b)(1)(A) of the
Act.
5. Whether the Respondent Company constructively dis-
charged Marvin Eisele, in violation of Section 8(a)(3) and (1)
of the Act.
6. Whether the Respondent Union caused James Pasdach
to be blocked from entry into the plant, in violation of Section
8(b)(l)(A) of the Act.
7. Whether the Respondent Company permitted, con-
doned, and/or ratified the blocking of James Pasdach from
entering the plant, in violation of Section 8(a)(3) and (1) of
the Act.
8. Whether the Respondent Company discriminatorily dis-
charged James Pasdach, in violation of Section 8(a)(3) of the
Act.
9. Whether the Respondent Company discriminatorily sus-
pended Ray Black, in violation of Section 8(a)(3) -of the Act.
10. Whether the Respondent Company dominated and/or
assisted the Respondent Union, in violation of Section 8(a)(2)
of the Act.
MONON TRAILER, INC.
IV THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
In late 1971, the Steelworkers commenced a drive to organ-
ize Respondent Company's facility. A petition for an election,
as well as a charge of unfair labor practices, was filed by the
Steelworkers. In April 1972, Carl Morris, the Steelworkers'
representative in charge of the organizing campaign, received
a telephone call from Attorney Leslie E. Howell, then attor-
ney for the Respondent Company, with respect to the then
still pending election petition. In the course of that conversa-
tion, Attorney Howell urged Morris to decide what he
wanted to do with regard to the petition for an election,
because Keith Jackson, president of the Respondents Com-
pany, would like to form his own union. On April 26, 1972,
the Steelworkers withdrew its petition for an election." A
meeting of the employees of the Respondent Company was
set up to be held in April or early May 1972, at which Morris
was invited to address the employees with regard to soliciting
their support for the Steelworkers. Attorney Howell also ad-
dressed the meeting, as did President Jackson. President
Jackson indicated his preference for a company union and
told the employees that he would pay the expenses, furnish
a lawyer, and offered the services of Ron Klimara, the Com-
pany's comptroller, to help them draw up the bylaws, if they
wanted to have a union . He called for a show of hands to see
how many of the employees wanted to form their own union.
Shortly thereafter, Attorney Howell received a telephone call
from some employees who engaged him to create a union as
a nonprofit corporation. Attorney Howell prepared articles of
incorporation and bylaws and attended a meeting of the em-
ployees at which they were approved. He was paid for his
services by check from the Respondent Union. On August 15,
1972, the Respondent Company and the Respondent Union
entered into a collective-bargaining agreement expiring Au-
gust -31, 1973. The contract contained a union-security
clause.
MTM has recently ceased its status as an independent
union and has affiliated with United Brotherhood of Carpen-
ters and Joiners of America, AFL-CIO.
B. The Acquisition of Monon Trailer, Inc., by Evans
Products Company
Monon Trailer, Inc., was merged with Evans Products
Company on August 31, 1973,5 and became a division of
U.S Railway Manufacturing Company, a wholly owned sub-
sidiary of Evans Products Company. Prior to that date,
negotiations for the merger had come to fruition in early
August, and to comply with Securities and Exchange Com-
mission requirements, the planned merger was announced on
August 14. On the afternoon of that day, President Jackson,
accompanied by Donald Heffner, director of industrial rela-
tions for the industrial group of Evans Products Company,
met with the officers and directors of MTM and announced
the planned merger. The officials of MTM were told that this
announcement would be made later that afternoon at a meet-
ing of all employees of Respondent Company, and that on
The unfair labor practice charges were also withdrawn.
5 Unless otherwise indicated, the events detailed herein occurred during
1973
261
completion of the meeting, MTM could use this opportunity
for advising the employeees of the then ongoing negotiations
between MTM and the Respondent Company for a new col-
lective-bargaining agreement.
C. Events Leading to the Ratification of the New Contract
During July and August 1973, the negotiating committee
of MTM had held a series of meetings, approximately 10 to
15 in number, with the Respondent Company. During this
period, MTM consulted frequently with its attorney, Mr.
Boomershine. Various matters, including pension, wages, in-
surance, cost of living, vacations, arbitration, absenteeism,
etc., were among the matters discussed by the parties. The
negotiating meetings were conducted in the offices of the
Respondent Company, but the officials of MTM were not
compensated for the time spent in attendance.
In the meantime, merger negotiations between Motion
Trailer and Evans Products Company were proceeding. As it
appeared likely that the merger talks would be successful,
Evans Products Company became concerned that the merger
with a company facing a contract expiration date might result
in its buying a strike. The concern of Evans Products Com-
pany was reflected in a meeting on August 10, between Presi-
dent Jackson and members of the Board of MTM, at which
President Jackson requested that MTM hold a vote to either
reject or accept the new contract, by 8 p.m. of August 14.
As indicated above, President Jackson called a meeting of
all employees which was held on August 14 at approximately
3 p.m.6 Present were President Jackson, Vice President Ehr-
lich, and members of their families. President Jackson an-
nounced the planned merger. He then brought up the pending
proposed contract and stated his belief that the proposal was
a good one; that the contract was for 3 years, because Evans
Products Company wanted it that way. After President Jack-
son finished, he turned the meeting over to the MTM officials
and left with members of his family and the other supervisors.
The MTM officials then explained the terms of the proposed
collective-bargaining agreement, answered questions as to its
provisions, and announced that a vote would be held that
evening at the Company's facility. That evening a ratification
vote was held by secret ballot at the maintenance shop' (com-
pany property), and the employeees rejected the proposed
contract by a vote of 94 to 50.
On August 15, officials of MTM met with the Respondent
Company and discussed the failure of ratification. At this
meeting, it was agreed to move the cost-of-living clause to the
first year of the contract and the pension provision to the
second year. Also, the Respondent Company was requested
to explain the provisions of the proposed contract to the
employees, especially the operation of the cost-of-living
clause. The Company agreed.
In the meantime, James Buckley, then president of MTM,
approached various employees at work and asked them if
they would change their vote, if a second balloting were to
take place. When Buckley approached employee James Pas-
dach with this question, Pasdach responded by asking why
such a thing was being done. According to Pasdach, Buckley
stated that if MTM had to start negotiating with Evans Pro-
6 Employees were paid to 3:45 p m., which was the end of the shift.
262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ducts Company "it [the wage offer} would drop down to
about a nickel an hour." Pasdach and Buckley continued to
discuss the negotiations and the reason for the failure of
MTM to get more benefits. Pasdach suggested to Buckley
that MTM could get a lawyer free of charge by contacting the
Steelworkers. At this point, Pasdach became aware of the
presence of Ken McCormick. McCormick, according to Pas-
dach said , "You don't want them damn Steelworkers."
McCormick added that all the Steelworkers would do would
be to get the employees out on strike which would gain them
nothing. McCormick and Pasdach then engaged in an ex-
change over the wage rate compared to those of area plants.
This ended with McCormick's saying, "Well, if you don't like
it here, you can get your ass out."7
On August 16, the Company called a meeting of all em-
ployees to be held at 3 p.m. at the plant, and employees were
paid for their attendance until the end of their shift. The
meeting was attended by first-shift employees at the main
facility. A similar meeting was later held at the Respondent
Company's Royalwood facility for employees of the other
two plants. President Jackson opened the meeting by express-
ing his displeasure at the fact that the employees had refused
to ratify the collective-bargaining contract . He told them that
he had tried to give them a contract that included what he
thought they wanted and that there would be a lesser offer
from Evans Products Company. He told them that he would
give them one more chance to vote on the contract and set
a deadline for the vote. The meeting was then turned over to
Vice President Ehrlich, who explained the terms of the con-
tract with the aid of a chart. The meeting was then open for
questions from the employees. In response to a question as to
the reason for the delay of certain benefits until the second
year of the contract, Vice President Ehrlich stated that Evans
Products Company was governed by Federal guidelines.
President Jackson added that a violation of the guidelines
would result in fines to the employer and MTM. He then
asked MTM President Buckley if MTM had the money to
pay the fines. When Buckley shook his head in the negative,
Jackson said, "Well, they would have to assess your checks
to pay those fines." After the question and answer period,
President Jackson turned the meeting over to Union Presi-
dent Buckley and offered to leave, but Buckley said that this
was not necessary. Buckley then called for a show of hands
as to whether the employees desired another ratification vote
and thereafter announced that such a vote would be held the
following night.
On August 17, a ratification vote was conducted at the
MTM hall.' The proposed agreement was ratified by the
union membership, and on August 20, the parties formally
executed a collective-bargaining agreement.
D. The Steelworkers' Organizing Campaign and Ensuing
Events
1. The inception of the campaign
Following the ratification vote, Pasdach, who had been a
member of the Steelworkers at his former place of employ-
ment, wrote' a letter to the president of the Steelworkers,
requesting help for himself and other disillusioned employees
in the form of an organizing drive. Pasdach also spoke to
employee Ray Allen Black about the possibility of such a
drive. Later, in September, Carl Morris, International Repre-
sentative of the Steelworkers, contacted Pasdach to set up a
meeting with interested employees. Pasdach told employee
Marvin Eisele and asked him to spread the word about the
meeting to some -of the employees Such a meeting was held
on October 2, and 10 employees, including Black, Pasdach
and Marvin Eisele were present. Morris passed out authoriza-
tion cards to those present, and Black, Pasdach and Eisele
each signed one. When Pasdach left the meeting, he ran into
MTM President Buckley whom he successfully solicited to
sign a Steelworkers' card.'
2. The alleged threat to Black
The day after the meeting, Pasdach, Eisele, and Black
began to campaign actively for the Steelworkers. On October
3 or 4, Black overheard a conversation between Foreman Ken
McCormick" and another employee, John Hancock, who
was accusing Pasdach of putting Steelworkers cards in his
locker. Black entered the conversation and admitted that he
was the one who had left the cards in the locker. A conversa-
tion about the Steelworkers ensued. According to Black,
Foreman McCormick told him that if the Steelworkers got in,
there would be a yearly layoff of 1 or 2 months per year, and
that, if Black didn't like the way things were being run, he
should get a job elsewhere. Foreman McCormick's version is
different. He admitted that there was a conversation, but
testified that he was referring to the 1972 meeting which had
been addressed by Steelworkers representative Carl Morris,
during which an employee asked Morris, "If we would be out
on strike. If, you know, we'd only work like maybe 10 or 11
months out of the year." McCormick continued: "And I told
John Hancock that Carl Morris never gave us a direct an-
swer. That he just kind of shrugged the question off." I credit
McCormick's testimony in this regard, and I recommend that
the complaint be dismissed in this regard.
7 McCormick was not interrogated regarding the foregoing conversation.
Although the General Counsel in his brief refers to McCormick as being a
foreman, the record shows that McCormick did not become a foreman until
September or October 1973; that at the time the foregoing conversation
occurred, McCormick was an ;hourly paid block leader, and while he had the
authority to issue disciplinary warnings, the record does not show what
effect, if any, such warnings had. Nor does the record show that he had any
authority indicative of supervisory status. In any event, the above incident
does not appear to be a threat, nor is it alleged to constitute a violation of
the Act.
S This was a building rented on a yearly basis from the Lions Club by the
MTM This building is also referred to in the record as the Boy Scout
Building.
3. The threat to Krugger
During October, a petition was circulated among the mem-
bers of MTM to oust Pasdach from the Union. In this connec-
tion, Francis Allen, a director of MTM, approached em-
ployee Darrell Krugger and asked him if he had signed a
Steelworkers card. Krugger admitted that he had done so,
9 Buckley testified that he signed the card to establish a position from
which he could keep the Steelworkers drive under surveillance
10 McCormick was then admittedly a foreman
MONON TRAILER, INC.
whereupon Allen handed him a slip of paper stating that the
signer wanted Pasdach ousted from the Union. Francis Allen
told Krugger that "anybody who signed a Steelworkers' card,
if they don't sign one of these slips of paper, he was going to
get fired." Krugger thereupon signed the slip. Francis Allen
admitted asking Krugger to sign a slip, but denied that it was
for the ouster of Pasdach from MTM; that it merely stated
that the signer had been approached by, with a blank for the
name, and asked to sign a Steelworkers authorization card.
He testified further that the purpose of the inquiry was to
measure the Steelworkers strength. Krugger appeared to be
a straightforward, honest witness, and I credit his testimony.
Conversely, I do not credit the testimony of Francis Allen,
whose testimony in other respects lacked veracity. Nor do I
credit the testimony of James Buckley, formerly president of
MTM, who attempted to corroborate Francis Allen's tes-
timony with regard to the nature of the slips that Allen was
circulating,
The record does not show that either Allen or Buckley was
a supervisor or agent of the Respondent Company, and the
latter is not chargeable with their conduct. Accordingly, I
recommend that the complaint be dismissed as to the Re-
spondent Company in this regard. However, as officers of
MTM, thei)conduct results in a violation by MTM of Section
8(b)(1)(A) as a threat "to cause or attempt to cause an em-
ployer to discriminate against an employee in violation of
subsection (a)(3)" (Section 8(b)(2) of the Act). thereby re-
straining and coercing Krugger in the exercise of the rights
guaranteed in Section 7 of the Act, and I so find.11
4. The attempted ouster of Pasdach and Eisele
The fact that petitions for the ouster of Pasdach were being
circulated came to the attention of Pasdach and Eisele. Dur-
ing a casual encounter with Plant Superintendent Donald
Griffin, Pasdach mentioned that Robert Allen was circulat-
ing such petitions on company time and requested equal time
to get Steelworkers cards, signed. Griffin replied that Pasdach
would not be allowed to do that, but, according to Pasdach,
admitted that Allen had received the Company' s permission
to engage in his activities. Superintendent Griffin admitted
that he denied Pasdach permission to pass out Steelworkers
cards, but denied saying that Allen had received the Com-
pany's permission to engage in his activities. Eisele, who was
present, corroborated Griffin's testimony in this regard. I do
not credit this portion of Pasdach's testimony, and I recom-
mend that the complaint be dismissed in the regard.
On October 10, the board of directors of MTM met and
voted unanimously to oust Pasdach and Eisele from member-
ship in the Union. Pasdach and Eisele were informally in-
formed of the action by MTM President Buckley. However,
despite the vote, no action was actually taken to effectuate the
ouster. Instead, the board of directors referred the matter to
Attorney Boomershine who told them that their action could
be violative of the Act. Thereupon, Buckley informed them
that-they had not been ousted.
It is well settled that the expulsion of an employee from
membership in a union because he circulates a decertification
11 Journeymen Plasterers 'Protect,ve, etc., Local 5, 145 NLRB 1608, 1620
(1964) (and cases cited at In . 29), enfd. 341 F.2d 539 (C A. 7).
263
petition is not violative of the Act. Tawas Tube Products, Inc,
151 NLRB 46, 49 (1965); International Molders' and Allied
Workers Union, Local No. 125 (Blackhawk Tanning Co.
Inc.), 178 NLRB 208, 209 (1969).12 Accordingly, I recom-
mend that the complaint against the Respondent Union be
dismissed in this regard. -
5. The alleged threat to Steele
Pasdach also attempted further the progress of the organiz-
ing campaign by providing two documents to-employee Mar-
tha Steele to be posted on the bulletin board at the Royalwood
facility. The first of these documents was a notice to em-
ployees posted pursuant to a settlement agreement approved
by the Regional Director of the National Labor Relations
Board, dated January 12, 1972, and signed by President
Keith Jackson on behalf of the Respondent Company. The
second document was a Board notice regarding elections. In
the early part of October, Steele approached her foreman,
Harry Denton, for permission to post these documents on the
bulletin board. The bulletin board was used regularly by
employees for a wide variety of personal reasons, but required
company permission for posting. Foreman Denton told Steele
that he would have to check the matter out with MTM Presi-
dent Buckley. He then called Buckley and called Steele to the
telephone to speak with Buckley. According to Steele, Buck-
ley told her that if she put the papers on the bulletin board
she was going against MTM and was endangering her job.
Steele later called Buckley from her home and asked him why
he said that she would be endangering her job by posting the
notices. Buckley replied that "it was against MTM, going
against MTM."
Buckley's version is somewhat different. He admitted tell-
ing Steele in the first conversation that "she could be jeopard-
izing her job and that I didn't know how Keith Jackson
would take this." He explained "I told her that it could be
jeopardizing her job, that I know I wouldn't want a letter
circulated that I had signed and I didn't know what action
would be taken." As to the second conversation, Buckley
testified that Steele told him that "there was nothing that we
could do to her on her job because the Steelworkers were
going to back her 100 percent with this," and that that was
all there was to that conversation, "because I was afraid to
say anything else." I find the evidence evenly balanced and
cannot find that Buckley threatened to have MTM cause
Steele's discharge. Accordingly, I recommend that the com-
plaint against MTM be dismissed in this regard.
6. President Jackson's remarks at the October meetings
On October 17, the Steelworkers filed unfair labor practice
charges against the Respondent Company. President Jackson
called a meeting of the employees to discuss the charges.
During the course of the meeting, he pointed out the relative
disavantages of the Steelworkers vis-a-vis MTM. Pasdach
rose to respond to certain of the statements, and the resultant
exchange ended with Jackson's walking out in obvious anger,
A similar meeting was held at the Royalwood facility. At this
12 In the instant case, Pasdach 's and E,sele's efforts , though apparently
aimed at eventual decertification of MTM, had not even reached that point
264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting, President Jackson told the employees that it had
taken him 17 years to build up the Company and an employee
who had not been there for a year "was tearing it all down,
creating problems."13
The foregoing recital does not demonstrate that President
Jackson engaged in any coercive conduct. Accordingly, I
recommend that the complaint against the Respondent Com-
pany be dismissed in this regard.
E. The Alleged Constructive Discharge of Marvin Eisele
Marvin Eisele began his employment with the Respondent
Company in October 1971, and was classified as a painter in
the finish area. On September 3, 1973, he was transferred at
his own request to the classification of painter in the primer
booth, because he had a rash which he felt might be due to
the paint. The document effectuating his transfer states:
"Transferred from paint rack to primer booth starting at A
painter wages. This is to [sic] top wage for this department.
With understanding wages justify filling in on paint rack in
absence of normal painter."
Toward the end of September, Kenneth McCormick as-
sumed the duties of foreman in that department. According
to Eisele, since early October he was assigned additional
work, such as cleaning up the area and carrying metal parts.
However, Foreman McCormick testified credibly that when
he became foreman he changed the cleanup procedure in the
department. Previously, every Friday afternoon, during the
last 45 minutes of the shift, everyone in the department
stopped his production and cleaned up the area. Instead,
McCormick required that anyone in his department who had
caught up with their job and that this rule applied to all of
the employees in the department. Eisele admitted that he was
not the only one who was required to clean up.
On the day before Eisele terminated his employment, he
approached Foreman McCormick and asked permission to
leave work 15 minutes early that day, stating that he would
work through the noon hour to make up the difference in
time. Foreman McCormick granted permission. Later that
day, Eisele again approached Foreman McCormick and said,
"Now, I want to make it plainly clear to you that I was going
to be off on union business and if you don 't feel that I should
be off say so and I won't take off." It is noted that Eisele did
not specify which union he was referring to. Nevertheless,
McCormick granted permission. Eisele left work 15 minutes
early, went outside the plant and handbilled for the Steel-
workers.
That evening, Foreman McCormick decided to shut down
his department because of an immediate lack of work, plan-
ning to shutdown for 2 or 3 days. When Eisele and the other
employees of the department reported for work the next
morning, they were given an option by Foreman McCormick
of working in other than their regular jobs, or clocking' out
and going home. All accepted other duties, and Eisele, with-
out complaint and apparently rejecting the option of going
home, was assigned to the paint booth, the job he previously
had held until September. Eisele requested and was given
permission to return to his home and get his coveralls.
After his return, according to Eisele, Foreman McCormick
in a "raving fit" and using vulgar language told him that if
he did anything wrong on the job he would be fired; also, "if
he got in any trouble over it he would contact me uptown or
some place and whip my ass." According to Eisele, he asked
McCormick at least twice, what his problem was and McCor-
mick answered, "You know what I'm talking about." Fore-
man McCormick's version is entirely different. He testified
that he observed that when Eisele returned to the plant and
was on his way from the clockroom to the work area, he
stopped and talked to about seven or eight persons, and it
took him quite a bit of time to get to the work area.14 Fore-
man McCormick then sought out Buckley, then president of
MTM, and with Buckley approached Eisele. He told him that
he was there to paint trailers and that if he got a trailer
painted and he had to wait for a forklift, he was to clean up
around the area; and if he had to go to the restroom he was
to go straight to the restroom and not talk to anyone and go
straight back to work.15 Foreman McCormick testified fur-
ther that a few days before the above incident, Attorney
Nyhart, representing Evans Product Company, had held a
general foreman's meeting in which he directed them "that
if we knew of anyone that was active in the Steelworkers, who -
was trying to get the Steelworkers in that we weren't suppose
to try to do anything with them." He testified further that he
was not reprimanded for having given Eisele time off in which
to handbill for the Steelworkers.
Following his conversation with Foreman McCormick,
Eisele went directly to the office of President Jackson and
announced that he was quitting. The record shows that Eisele
had threatened to quit on at least two prior occasions. On
February 16, 1973, Eisele actually signed a quit notice, but
then changed his mind and continued his employment.
The General Counsel contends that Eisele was construc-
tively discharged because of his activities on behalf of the
Steelworkers. I cannot agree. The General Counsel argues
that Eisele was given additional cleanup duties, but the record
shows that the other employees in the department were also
required to clean up.
With regard to the confrontation between Eisele and Fore-
man McCormick on the day that Eisele quit, even if Eisele's
version is credited , it does not amount to a constructive dis-
charge. There is no affirmative` evidence that Foreman
McCormick was reprimanded for having given Eisele time off
within which to handbill for the Steelworkers. In any event,
the essence of what Foreman McCormick told Eisele was that
if he did anything wrong on the job, he would be fired. By
implication, Eisele was told that if he did his job correctly,
he would not be fired. The record shows that sometime in
August, Eisele had been severely reprimanded for having
failed to turn off a paint sprayer pump, as a result of which
paint had run out on the floor. Accordingly, I find and con-
clude that Eisele's quitting was', not caused by the Respondent
Company's imposing oppressive conditions to induce Eisele
to quit, and I recommend that the complaint be dismissed in
this regard.
14 There is substantial evidence in the record that Eisele had a reputation
13 The reference was obviously to Pasdach who had started his employ- of stopping to talk with other employees in the plant
ment on April 30, 1973. 15 Buckley corroborated McCormick's testimony as to their conversation.
MONON TRAILER, INC. 265
F. The Blocking of Pasdach
On November 21, the day before Thanksgiving, when Pas-
dach attempted to return to the plant after lunch, a group of
employees stationed themselves outside the Respondent
Company's gate and physically blocked Pasdach's entry.
Three of the group came up to the window of Pasdach's car,
and one of them, Robert Allen, told Pasdach that it would
not be healthy for him to come in to work. Pasdach left and
telephoned Superintendent Donald Griffin. Pasdach told
Griffin that he had been blocked out and named five or six
of the employees who had been involved. Griffin promised to
check in to the matter and to call him back. Later in the
afternoon, Griffin called back and inquired whether the inci-
dent occurred on company property. Upon being told by
Pasdach that it was not on company property but just outside
of it, Griffin answered, "Well, we can't be responsible for
what goes on off company property," but added that the
Company was not going to put up with such actions, and that
he personally, would guarantee Pasdach's protection if he
came to the plant.
On Friday, the day after Thanksgiving, Pasdach attempted
to report for work in the morning. Again, he was met by
employees who blocked his access to the plant. Pasdach left
the premises and telephoned President Jackson. President
Jackson asked Pasdach whether the incident had occurred on
company property, and on being told that it was not on
company property, told Pasdach that he could not be respon-
sible for what goes on off company property, saying: "If that
was true, I could tell everybody uptown what to do." Pasdach
then threatened to go to the Labor Board, and a heated
exchange ensued. It ended when Pasdach told President Jack-
son that he would come to the office to pick up his paycheck
which was due that day.
Pasdach informed Carl Morris, International representa-
tive of the Steelworkers, of the above incidents. Under date
November 27, Morris wrote a letter to Attorney Nyhart,
representing the Evans Products Company, charging the Re-
spondent Company with responsibility for the actions of the
employees "whether such actions take place on company
property or are carried out after hours." The letter requested
Attorney Nyhart to advise the company representatives at
Motion of their legal responsibilities and to advise the em-
ployees that a repetition of such action would not be tole-
rated.
Under date of December 5, 1973, Attorney Nyhart wrote
International Representative Morris stating that at no time
did the Company condone interference with, or threats to,
Pasdach by any employee. It further stated that the Company
could not police its employees when they are neither on com-
pany time nor company premises, and, while it would take
extreme disciplinary measures against any misconduct, the
Company could not absolutely guarantee before the fact that
such conduct would not occur. The letter concluded with the
statement that the Company extended to Pasdach the firm
assurance that, if he returned to work , no threats or miscon-
duct against him on company premises would be condoned.
Pasdach did not return until December 10. He explained
his failure to return earlier as follows:
I was blocked out approximately 5 days, I brought in a
Doctor's excuse and 2 days to the Dentist and also days
that we had the blizzard and we were kept from work.
In the meantime, work of Pasdach's being blocked on
November 21 became common knowledge, and President
Buckley of MTM learned of it. He immediately telephoned
Attorney Steckler who advised him to tell each of the officers
and directors of MTM that the Union would not condone
such action. According to Buckley's credited testimony, he
did so. Attorney Steckler promised to prepare a notice to be
signed by Buckley and posted on the bulletin boards. Such a
notice was posted on December 12, and reads as follows:
MTM Union, Incorporated
Notice Concerning Employee,
James Pasdach
Notice is hereby given by and in behalf of MTM
Union, Incorporated, its officers and directors, that your
Union has been charged before the National Labor Rela-
tions Board with threats of physical injury and restraint
of entry to the plant against James Pasdach.
If any such actions were taken against Pasdach, your
Union did not sponsor, encourage or condone the same,
directly or indirectly, and does not and will not sponsor,
encourage or condone any such acts in the future.
Anyone deemed guilty of such acts will be disciplined
by the Union, and presumably, by the Company.
Dated the 12th day of December, 1973
It is clear from the record that supervisory personnel of the
Respondent Company were aware that an attempt was going
to be made to deny Pasdach entry to the plant. Thus, Fore-
man Dennis E. Warren admitted that he had heard rumors
to that effect and "some of the foremen had joked about it and
at the time, if any event should take place, that we would
arrange to be some place else, or not be involved in any way."
Yet, no action was taken by the Respondent Company to
warn the employees against engaging in such conduct.
Nor did the Respondent Company, after the first incident
of blocking out on November 21, take any effective measures
to prevent a repetition of such activity. It is noted that when
Pasdach called Superintendent Griffin on the afternoon of
November 21 and reported the incident to him, he gave Grif-
fin the names of five or six of the employees who had engaged
in the blocking. It is true that Superintendent Griffin told
Pasdach that if he came to the plant , he, Superintendent
Griffin, would guarantee his safety. However, there is no
evidence in the record that Superintendent Griffin, or any of
Respondent's hierarchy, made any investigation of the mat-
ter, or spoke to any of the named participants, or admonished
them against a repetition of this practice. President Jackson
testified that on the afternoon of the first occurrence, he
spoke with MTM President Buckley and told him that the
Company would not condone violence, etc.,"' but this was
plainly inadequate , as subsequent events demonstrated. In-
deed, the attitude of President Jackson was one of complete
disinterest and disinclination to do anything in the matter,
1 6 President Buckley did not corroborate President Jackson in this regard.
He testified that he had heard about the blocking out.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
because the blocking out did not occur on company property,
even though it was at the Company's gate. I find that the
Respondent Company through its supervisors had notice of
the impending blocking of Pasdach. Furthermore, the failure
of Respondent Company to take any effective action after the
first incident constituted condonation and encouragement of
a repetition of the activity.
It is well settled that "[a]n employer's responsibility for
such exclusion is, however, not dependent upon knowledge in
advance of the exclusion , but arises if the employer, as in this
case, is immediately advised of the exclusion and does noth-
ing to prevent its continuance" (Detroit Gasket and Manufac-
turing Company, 78 NLRB 670, 671-672 (1953)). See also
Altamont Shirt Corporation, 131 NLRB 112, 117-118 (1961);
Fred P. Weissman Company, 69 NLRB 1002, enfd. 170 F.2d
952 (C.A. 6), cert. denied 336 U.S. 972.
The Respondent Company argues that it is not required to
guarantee the safety of Pasdach away from the plant. But
there is an obvious difference between protecting a dissident
employee from violence occurring as a result of an argument
in a tavern , as distinguished from protecting the right of the
employee to enter the plant, even though the employees who
prevented his entry were technically on public property just
outside the plant's gate.
MTM is also responsible for the blocking,out. MTM
sought to make it appear that the blocking out was conduct
by the rank-and-file members, without authorization or con-
sent of the Union. However, it is clear from the record that
Andrew Stahl, a director, was one of the participants, while
another director, Francis Allen, acted as general overseer of
the activity. Stahl testified that on November 21, the date of
the first occurrence, he went to the guard shack near the
office to visit Omer Swisher, a friend; while there he saw a
crowd at the gate and went there to see what was happening;
he asked Joe Pearson what was going on; and he turned back
toward the office before the crowd dispersed."
Francis Allen, also a director, testified that during the
lunch hour of November 21 he drove to the plant to see MTM
President Buckley on union business , parked his car in the
parking lot, and started toward the plant when he observed
a crowd at the employees entrance gate; he was about 70 feet
from the groupand watched for about 10 minutes until the
group dispersed. He testified further that he changed his
mind about seeing Buckley because "it looked like there was
some trouble brewing and I did't want to have anything to
do with it," and got back into his car and left the plant
premises.18
I do not credit the testimony of Stahl and Francis Allen.
The testimony of both men is transparently incredible. It is
strange that Frances Allen went to the plant to see Buckley
and then changed his mind because it looked like there was
going to be trouble and he didn't want to have anything to
do with it. Patently, had he continued into the plant to see
Buckley, as he says he had intended to do, he could not have
been implicated in the blocking. His reason for changing his
mind does not ring true. If anything, it indicates knowledge
17 Neither Swisher nor Pearson was called to corroborate Stahl
is Francis Allen was a brother of Robert Allen and Jerry Allen whom
Pasdach identified as part to the group that blocked him from entering.
Robert Allen was the spokesman for the group when Pasdach attempted to
enter
of what was going on, and, indeed, Allen admitted that he
had heard rumors of a planned-blocking out of Pasdach; and
knew when he saw the group that such might have been their
purpose. I find that Stahl was a member of the group that
blocked Pasdach's entry on November 21, and that Francis
Allen's presence in the parking lot was for the purpose of
overseeing the operation.
As directors of MTM, Stahl and Allen were agents of the
Union, and MTM is chargeable with their conduct. Journey-
men Plasterers' Protective, and Benevolent. Society of Chicago,
Local 5, 145 NLRB 1608, 1620 (1964) (and cases cited at fn.
29), enfd. 341 F.2d 539 (C.A. 7, 1965). As the Court of
Appeals for the Third Circuit said in NLRB. v. Bulletin
Company, 443 F.2d 863 at 867 (1971):
When union officers knowingly stand passive in the
face of flagrant misconduct by a body of their members
calculated to force an employer into a violation of the
law, without taking affirmative action to repudiate that
misconduct , and when, as here, that passivity amounts
to silent approbation, the Union may not escape liability
by claiming the misconduct was that of its individual
members and not of the Union itself.
MTM President Buckley's action in speaking to the offi-
cers and directors of the Union and telling them that the
Union would not condone the blocking out of Pasdach does
not relieve MTM of responsibility. The action was ineffective,
as the blocking was repeated the next working day, this time
with the officers and directors absent . It is significant that
Buckley did not then and there post notices advising the
members of MTM that the Union would not condone the
action and directing them to refrain from such activity. In-
deed, such a notice was not posted until December 12, more
than 3 weeks later.
Accordingly, I find and conclude that the Respondent
Company and the Respondent Union are jointly and severally
responsible for blocking Pasdach's entry into the plant on
November 21 and 23. Respondent Company's conduct was
violative of Section 8(a)(3) and (1) of the Act, while MTM's
conduct violated Section 8(b)(1)(A) of the Act.
G. The Discharge of Pasdach and the Suspension of Black
Pasdach was discharged on February 20, 1974. On the
same day and resulting from the same incident, Ray Allen
Black, who had signed a Steelworkers card , was suspended
for 3 days. The events leading up to the foregoing actions are
as follows:
Pasdach returned to work on,February 19, 1974, after
having been ill for 2 weeks, during part of which time he had
been hospitalized. The particular job to which Pasdach was
assigned could be performed with either of two drills, com-
monly called bottom rail machines. That morning Pasdach
started with the newer of the drills, but switched to the older
one, after encountering problems with the alignment of the
holes drilled. Francis Allen, leadman in the department, was
present in the department during the morning . Allen was not
in the department after the lunchbreak and did not return
until approximately 3 o'clock in the afternoon. When Allen
returned, Pasdach was still- using the older drill, and Allen
immediately asked Pasdach why he was using that machine.
MONON TRAILER, INC.
Pasdach explained that there had been problems with the new
machine, but Allen proceeded to set up the job with the new
drill. Pasdach protested the change and asked to be taken off
of the job. Allen assigned him to a new task.
Allen then assigned the drilling task to Black and directed
him to use the new machine. As Black began to use the new
machine, one of the clamps holding it to the bottom rail
popped loose and Black shoved the machine down on the rail
where it struck a clamp. Black's action drew a rebuke from
Allen, which led to an argument between Black and Allen.
Pasdach was assisting another employee in setting up a drill
for the top rail when he observed the argument. As Pasdach
approached Black and Allen, he saw Black standing in anger
with his fists clenched, and he heard Black say that perhaps
he should go home, to which Allen agreed. Pasdach stepped
between Black and Allen, took Black by his shoulders, and
told him to cool down, telling him that "they" wanted to
provoke Black into a rash act. He said, "You know they've
been after us since October. So just be `cool."' Pasdach then
turned toward Allen who tapped Pasdach on the shoulder
and said, "Go back there and do your job." Pasdach then
turned to Black and said, "Did you see that?" He turned back
to Allen and said "You keep your damn hands off of me."
Allen again tapped Pasdach on the shoulder and said, "I'll
put my hands on you any time I want to," and again told
Pasdach to go back to work. Pasdach angrily said, "No."
Allen then left the scene and returned with Foreman
McCormick who directed the participants to his office.
There, Foreman McCormick accused Pasdach of being a
troublemaker and asked for the facts. Allen told him what
had occurred. Black admitted that he had not been feeling
well and had lost his temper. Allen told McCormick that
Pasdach had butted in, that he had told Pasdach to return to
work and the latter had refused. McCormick asked Pasdach
why, and Pasdach replied, "To prevent a fight." Foreman
McCormick then left his office and returned with General
Foreman Charles Ehrlich who interrogated the participants.
Ehrlich then left and returned with President, Jackson, Attor-
ney Nyhart, Vice President Jerry Ehrlich, and Ray Cooley
and Andrew Stahl, representing MTM. Attorney Nyhart
questioned the participants. With regard to Black the follow-
ing colloquy is significant:
Q. (Nyhart): And [did you tell me] that you did slam
down the drill you told me?
A. I shoved it down and hit a clamp, yes.
Q. And you said, "I'm sorry." "I had a headache," or
something to those words?
A. Something to that effect, yes.
Q. Before, you slammed down the drill, did you tell
Francis Allen that "I might as well break it. Then no one
would have to use it"?
A. I said something to that effect.
Q. Those are the words that you used in your affidavit.
Would that be your better recollection when you gave
that?
A. Yes.
With regard to Pasdach, Allen told the company officials
that he had ordered Pasdach on two occasions to return to
267
his job. Pasdach interrupted and called Allen a "God damn
liar." Attorney Nyhart then turned to Black and questioned
him. Black stated that Pasdach had twice refused to return
to his job.
At this point, President Jackson, Attorney Nyhart, and the
two Ehrlichs withdrew from the meeting and conferred. At
the caucus, it was agreed that Black should be suspended for
3 days and Pasdach should be discharged. With regard to
Pasdach, Attorney Nyhart cautioned President Jackson that
the discharge of Pasdach would lead to an NLRB complaint,
but stated that in other plants Pasdach's conduct would be
a dischargeable offense.
With regard to the 3-day suspension imposed upon Black,
the following colloquy occurred:
Q. (Nyhart): Do you think we were unfair to you?
A. To me?
Q. Yes.
A. Really, yes.
Q. Do you think it was too severe.
A. I don't think I should have got three days off for
it.
Q. Would a written warning have been fair?
A. I think so, yes.
A review of the record, summarized above, leads me to the
conclusion that the General Counsel has failed to prove that
the disciplining of Black and the discharge of Pasdach were
violative of Section 8(a)(3) of the Act. With regard to Pas-
dach, the record is clear that he injected himself into a matter
that was of no concern to him and insisted on participating
in the dispute, refusing twice an order to return to work. He
was plainly guilty of insubordination. The issue whether
Black should have received a warning notice, rather than a
3-day suspension, is not properly before the Board, as the
General Counsel has presented no evidence that other em-
ployees who were not adherents of the Steelworkers received
only warning notices in similar situations. Indeed, no compa-
rable evidence whatsoever was presented by the General
Counsel. Accordingly, I recommend that the complaint be
dismissed in this regard.
H. The Alleged Domination of and Assistance to MTM by
- the Respondent Company
The General Counsel 's contention that MTM was from its
creation dominated and assisted by the Respondent Com-
pany, which occurred more than 6 months prior to the filing
of the charge herein, is barred by the provisions of Section
10(b) of the Act . Evidence concerning the creation and for-
mation of MTM was received in evidence in accordance with
the decision of the Supreme Court in Local Lodge No. 1424,
International Association of Machinists, AFL-CIO,' and Inter-
national Association of Machinists, AFL-CIO v. N.L.R.B.,
362 U.S. 411, 416 (1960) "to shed light on the true character
of matters occurring within the limitations period . . . ."
The background evidence so adduced does not demonstrate
that the events occurring within the 10(b) period were viola-
tive of the Act. Although the employees in forming MTM
availed themselves of the services of the Respondent Com-
pany's attorney, it is clear from the record that the Respond-
ent Company did not pay any of the-expenses of the incorpo-
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ration of MTM. Rather, it is undisputed that MTM paid the
attorney's fees and all expenses relating to the incorporation
of the Union. Furthermore, MTM has at all times been self-
sustaining and has employed its own counsel after its mcorpo-
ration.
As far as events occurring within the 10(b) period are
concerned, the record is devoid of any evidence of domination
by the Respondent Company. Insofar as assistance by the
Respondent Company is concerned, the record shows only
that the Respondent Company permitted MTM to hold a
meeting on company property to take the first vote by the
employees as to whether they would ratify the proposed new
contract. At all other times, MTM met at a rented hall, not
connected with the Respondent Company. Also, it is-admit-
ted that the Respondent Company permitted MTM to use its
Xerox machine. However, the evidence shows that Respond-
ent Company rents the Xerox machine, that there is a mini-
mum rental, that the Respondent Company does not use the
Xerox machine sufficiently to equal the minimum rental
charge, and as a result permits organizations in the com-
munity, including MTM, to use the machine. Thus, the Re-
spondent Company incurs no additional expense in permit-
ting MTM-to use the Xerox machine. While the foregoing
conduct of the Respondent Company may technically
amount to assistance within the meaning of the Act, I find
and conclude that it is de minim is, and I recommend that the
complaint be dismissed in this regard.
V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent Company and the MTM
set forth in section IV, above, occurring in connection with
the operations of the Respondent Company described in sec-
tion I, above, have a close, intimate, and substantial relation
to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow thereof.
VI THE REMEDY
Having found that the Respondent Company has engaged
in unfair labor practices within the meaning of Section 8(a)(3)
of the Act, I shall recommend that it cease and desist there-
from and that it take certain affirmative action designed to
effectuate the policies of the Act. Having found that the
Respondent Union has engaged in unfair labor practices
within the meaning of Section 8(b)(1)(A) of the Act, I shall
recommend that it cease and desist therefrom and that it take
certain affirmative action designed to effectuate the policies
of the Act.
Having found that both the Respondent Company and the
Respondent Union are responsible for the blocking out of
Pasdach from the plant, I shall recommend that they jointly
and severally make Pasdach whole for any loss of pay he may
have suffered by reason of such discrimination against him,
by payment to him of a sum of money equal to that which
he would have earned on the dates when he was refused entry
into the plant, with interest to be computed in the customary
manner."
I shall further recommend that the Respondent Company
be ordered to preserve and, upon request, make available to
the Board or its agents, payroll and other records to facilitate
the computation of backpay due to Pasdach.
CONCLUSIONS OF LAW
1. Respondent Company is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. MTM Union, Inc., and its successor MTM Union, Inc.,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. United Steelworkers of America, AFL-CIO-CLC, is a
labor organization within the meaning of Section 2(5) of the
Act.
4. By condoning the blocking of Pasdach from entering
into its plant, the Respondent Company discriminated in
regard to the employment of Pasdach, thereby encouraging
membership in Respondent Union, and has engaged in a
unfair labor practice within the meaning of Section 8(a)(3)
and (1) of the Act.
5. By causing the Respondent Company to discriminate
against Pasdach, in violation of Section 8(a)(1) of the Act, the
Respondent Union has restrained and coerced Pasdach in the
exercise of rights guaranteed in Section 7 of the Act and has
hereby engaged in an unfair labor practice within the mean-
ing of Section 8(b)(1)(A).
6. By threatening employee Krugger to have the Respond-
ent Company discharge him if he did not support the ouster
of Pasdach from the Respondent Union, in violation of Sec-
tion 8(a)(3) of the Act, the Respondent Union has restrained
and coerced Krugger in the exercise of rights guaranteed in
Section 7 of the Act and thereby engaged in an unfair labor
practice within the meaning of Section 8(b)(1)(A) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER20
A. Motion Trailer , Inc., Division of U.S. Railway Manu-
facturing Company, a wholly owned subsidiary of Evans Pro-
ducts Company, its officers , agents, -successors, and assigns
shall:
1. Cease and desist from:
(a) Discouraging membership in United Steelworkers of
America, AFL-CIO-CLC, or in any other labor organiza-
tion of its employees, by permitting other employees to pre-
vent the entry into Respondent Company's plant of any ad-
herent of such union.
(b) In any like or related manner interfering with , restrain-
ing, or coercing its employees in the exercise of the right to
self-organization , to form, loin , or assist any labor organiza-
19 EW. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing &
Heating Co., 138 NLRB 716 (1962)
20 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and order, and all objections thereto shall be
deemed waived for all purposes --
MONON TRAILER, INC.
tion, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities,
except to the extent that such right is affected by the proviso
of Section 8(a)(3) of the Act. -
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Jointly and severally with MTM Union, Inc., and its
successor, MTM Union, Inc., affiliated with Union Brother-
hood of Carpenters and Joiners of America, AFL-CIO, make
whole James Pasdach for any loss of pay he may have suffered
by reason of the discrimination against him, in the manner set
forth in the section of this decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, person-
nel records and reports, and all other records necessary to
analyze the amount of backpay due under the terms of the
Order.
(c) Post at its plant in Motion, Indiana, copies of the at-
tached notice marked "Appendix A."21 Copies of the notice,
on forms provided by the Regional Director for Region 25,
after being duly signed by an authorized representative of the
Respondent Company, shall be posted by the Respondent
Company immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 25, in writing,
within 20 days from the date of this Order, what steps the
Respondent Company has taken to comply herewith.
B. MTM Union, Inc., and its successor, MTM Union, Inc.,
affiliated with United Brotherhood of Carpenters and Joiners
of America, AFL-CIO, its officers, agents, and representa-
tives, shall:
1, Cease and desist from:
(a) Blocking, or attempting to block, the entry of em-
ployees of the Respondent Company from their place of work
at the Respondent Company's plant, or in any manner threat-
ening employees of the Respondent Company with physical
harm, injury, or reprisal if they work or attempt to work at
the premises of said Respondent Company.
(b) Threatening to cause, or to attempt to cause, Respond-
ent Company, its officers, agents, successors, or assigns, to
discharge, layoff, or otherwise discriminate against its em-
ployees in violation of Section 8(a)(3) of the Act.
(c) In any other manner restraining or coercing employees
of Respondent Company in the exercise of their right to
self-organization, to form, join, or assist any labor organiza-
tion„ to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or
pretection, or to refrain from any and all such activities,
269
except to the extent that such right is affected by the proviso
to Section 8(a)(3) of the Act.
2. Take the following affirmative action which is necessary
to effectuate the policies of the Act:
(a) Jointly and severally with the Respondent Company
make James Pasdach whole for any loss of pay he may have
suffered by reason of the discrimination against him, in the
manner set forth in the section of this Decision entitled "The
Remedy."
(b) Post at its business offices, meeting halls, and places
where notices to members are customarily posted, copies of
the attached notice marked "Appendix B."22 Copies of said
notice, on forms provided by the Regional Director for Re-
gion 25, after being duly signed by an authorized representa-
tive of said Union, shall be posted by the Respondent Union
immediately upon receipt thereof, and be maintained for 60
consecutive days thereafter, in conspicuous places, including
all places where notices to members are customarily posted.
Reasonable steps shall be taken by the Respondent Union to
ensure that said notices are not altered, defaced, or covered
by any other material.
(c) Notify the Regional Director for Region 25, in writing,
within 20 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
22 See In 21, supra.
APPENDIX A
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT discourage membership in United Steel-
workers of America, AFL-CIO-CLC, or in any other
labor organization of our employees, by permitting other
employees to prevent the entry into our plant of any
employee-adherent to such union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
their right to self-organization, to form, join, or assist
any labor organization, to bargain collectively through
representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the ex-
tent that such right is affected by the proviso to Section
8(a)(3) of the Act.
WE WILL jointly and severally with MTM Union, Inc.,
and its successor MTM Union, Inc., a/w United Broth-
erhood of Carpenters and Joiners of America,
AFL-CIO, make whole James Pasdach for any loss of
pay he may have suffered by reason of the discrimination
against him.
21 In the event the Board's Order is enforced by a Judgment of the United MONON TRAILER, INC, DIVISION OF
States Court of Appeals, the words in the notice reading "Posted by Order
U.S. RAILWAY MANUFACTURING
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an COMPANY, A WHOLLY-OWNED SUBSIDIARY
Order of the National Labor Relations Board." OF EVANS PRODUCTS COMPANY
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT participate in, or knowingly permit our
members to participate in, blocking or attempting to
block employees of Monon Trailer, Inc., Division of U.S.
Railway Manufacturing Company, a wholly-owned sub-
sidiary of Evans Products Company from their places of
work at the plant of said Company, or in any manner
threaten the employees of said Company with physical
harm, injury, or reprisal if they work or attempt to work
at the premises of said Company.
WE WILL NOT threaten to cause, or to attempt to cause,
Monon Trailer, Inc., to discharge or layoff, or otherwise
discriminate against its employees in violation of Section
8(a)(3) of the National Labor Relations Act, as
amended.
WE WILL NOT in any other manner restrain or coerce
employees of Monon Trailer, Inc., in the, exercise of their
right to self-organization, to form, join, or assist any
labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in
other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to re-
frain from any and all such activities, except to the ex-
tent that such right is not affected by the proviso to
Section 8(a)(3) of the Act.
WE WILL, jointly and severally with Monon Trailer,
Inc., make James Pasdach whole for any loss of pay he
may have suffered by reason of the discrimination
against him. -
MTM UNION, INC, AND ITS SUCCESSOR
MTM UNION, INC, A/W UNITED
BROTHERHOOD OF CARPENTERS AND
JOINERS OF AMERICA, AFL-CIO