G & H Products, Inc.

National Labor Relations Board - Board Decisions

Mar 23, 1982

261 N.L.R.B. 298 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G & H Products, Inc. and Lodge 34, International
Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 30-CA-5595
March 23, 1982
DECISION AND ORDER
BY CHAIRMAN VAN DE WATER AND
MEMBERS JENKINS AND ZIMMERMAN
On December 12, 1980, Administrative Law
Judge Walter H. Maloney, Jr., issued the attached
Decision in this proceeding. Thereafter, Respond-
ent and the General Counsel filed exceptions and
supporting briefs. Respondent and the General
Counsel also filed answering briefs in support of
the Administrative Law Judge.
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, find-
ings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
For the reasons fully set forth in the attached
Decision, the Administrative Law Judge has rec-
ommended deferral to an arbitrator's award finding
that shop steward Thomas Huber was lawfully dis-
ciplined for engaging in the unprotected activity of
advising employees to engage in insubordination.
The arbitrator found that Huber's advice to em-
ployees not to fill out piecemeal timecards until
Respondent had supplied the Union with requested
information was "tantamount to insubordination, as
the grievant was advising employees not to comply
with a legitimate directive of the Company."
The Administrative Law Judge found that the
unfair labor practice issue of antiunion discrimina-
tion had been presented to the arbitrator and that
the arbitrator had concluded Huber was disciplined
for unprotected insubordination, not for exercising
his duties as a steward in legitimate furtherance of
a grievance. Therefore, the Administrative Law
Judge concluded that the arbitrator had addressed
and resolved the unfair labor practice question and
had complied with the requirements of Spielberg
Manufacturing Company, 112 NLRB 1080 (1955),
and its progeny. 2 Accordingly, he recommended
i In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on backpay due
based on the formula set forth therein.
I E.g., Bay Shipbuilding Corporation, 251 NLRB 809 (1980); Suburban
Motor Freight, Inc., 247 NLRB 146 (1980); Atlantic Steel Company, 245
NLRB 814 (1979); and Raytheon Company. 140 NLRB 883 (1963).
261 NLRB No. 47
deferral to the arbitrator's award and dismissed the
8(a)(3) and (1) complaint allegation concerning
Huber.
We agree with the Administrative Law Judge
that deferral to the arbitrator's award is appropri-
ate. Contrary to our dissenting colleague, we do
not find the arbitrator's conclusion that Huber's
conduct was unprotected to be clearly repugnant
to the Act. In determining if an arbitrator's award
is clearly repugnant under Spielberg, the test to be
applied is not whether the Board would have
reached the same result, 3 but whether the award is
palpably wrong as a matter of law.4
Board law relevant to Huber's situation permits
reasonably differing opinions about whether Re-
spondent disciplined him for protected or unpro-
tected conduct. The Board has consistently ad-
hered to the principle that status as a shop steward
does not furnish a basis for total immunity from
discipline for acts of insubordination, including at-
tempts to persuade fellow employees to refuse to
follow work orders.5 Cases cited in the dissenting
opinion expressly followed the principle cited, but
found under the circumstances presented there that
the stewards' actions at issue remained part of a
grievance procedure and did not exceed acceptable
bounds of conduct.6 Further, we note that Board
law does not mandate finding, as the dissent sug-
gests, that advocacy of employee refusals to follow
work orders cannot be unprotected insubordination
if the refusals would not interfere with production
or cause economic harm. 7
Based on the foregoing, we find that the arbitra-
tor's award is not clearly repugnant to the purposes
and policies of the Act. Accordingly, we shall
defer to that award and dismiss the complaint alle-
gation concerning Huber's discharge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
' Spielberg Manufacturing Co.., supra
'International Harvester Company (Indianapolis Works), 138 NLRB 923,
929 (1962).
' Midwest Precision Castings Company, 244 NLRB 597 (1979); Jos
Schlitz Brewing Company, 240 NLRB 710 (1978); and Riviera Manufactur-
ing Co., 167 NLRB 772 (1967).
6 Pacific Coast Utilities Service. Inc., 238 NLRB 599, 606 (1978); and
Clara Barton Terrace Convalescent Center, a Division of National Health
Enterprises-Delfern, Inc., 225 NLRB 1028 (1976).
7 We do not share our dissenting colleague's apparent certainty that the
employees' refusals to fill out the timecards would not have interfered
with Respondent's operations. Respondent contends that the cards, which
required detail recordation of time performing each element of certain
production tasks, were necessary both to the preparation of an accurate
payroll and to the evaluation of production efficiency. We need not de-
termine the merit of this contention, however, in deciding the deferral
issue.
298
G & H PRODUCTS, INC.
Order of the Administrative Law Judge and
hereby orders that the Respondent, G & H Prod-
ucts, Inc., Kenosha, Wisconsin, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
MEMBER JENKINS, dissenting in part:
I agree with my colleagues that the Administra-
tive Law Judge was correct in finding that Re-
spondent unlawfully discharged employees Moore,
Mortenson, Gerber, and Westphal. However, I
would additionally find that Respondent unlawfully
discharged steward Huber. In so doing, I would
decline to defer to the arbitrator's award which re-
instated Huber without backpay, as I believe that
the award is repugnant to the Act.
Huber, as steward, was requested by employees
to attend a meeting held to instruct employees in
the proper manner to fill out new timecards; Huber
himself was not required to use the new cards.
During the meeting, Huber stated that, unless Re-
spondent supplied previously requested information
concerning the new incentive pay rates on which
the cards were based, he would advise employees
not to fill out the cards. The effect of such a refus-
al would be that employees would receive a lower
base rate for the work performed rather than the
incentive rate. Huber was discharged when, in a
later meeting with management officials, he refused
to retract his statement, which Respondent deemed
to constitute insubordination.
Following a hearing on a grievance filed con-
cerning Huber's discharge, the arbitrator issued an
award in which he found that Respondent had the
right to discipline Huber for counseling employees
to engage in insubordinate activity, but that the de-
cision to discharge Huber was based on both his
statement made before employees and his later re-
fusal to retract the statement. The arbitrator noted
that there was no evidence that a retraction of
Huber's statement was necessary in order to induce
employees to fill out the timecards as ordered by
Respondent's supervisors. Accordingly, as it ap-
peared that lesser discipline would have been im-
posed had Huber retracted his statement, and as
the refusal to retract the statement was not itself in-
subordinate, the arbitrator found that the discharge
was an excessive penalty. In finding that Huber's
statement constituted advocacy of insubordination,
the arbitrator rejected the Union's argument that
Huber's statement was privileged because it was
made in his capacity as a steward in pursuit of a
grievance over the new incentive rates and the re-
lated information request. Although the arbitrator
acknowledged that Huber was acting in his capac-
ity as steward when he advised employees not to
fill out the cards, he found that "[t]he latitude
given union representatives does not extend to
counseling or advising employees to engage in in-
subordination. Indeed, arbitrators have held union
representatives to a higher standard of conduct
than that required of other employees."
In my view, the arbitrator's award is repugnant
to the Act, as it found "insubordinate" conduct
which, under longstanding Board precedent, con-
stitutes protected concerted activity. Huber, in sup-
port of a legitimate union demand for information,
at most indicated an intention to advise employees
to engage in nondisruptive conduct which could
not be expected to result in economic harm to Re-
spondent.' The Union was both contractually and
statutorily entitled to the information requested,
and its request for such data was intimately linked
with the employees' distress over the new incentive
rate system and the cards used as part of that
system. Employees had found the cards difficult to
fill out properly and had been denied incentive pay
when the cards were filled out improperly. At the
same time, the employees suspected that the new
rates would not enable them to earn more than
their base pay, and the underlying data sought by
the Union was essential to evaluate this fear. Fur-
ther, when the Union first requested the informa-
tion the day before Huber's statement, Respondent
had the timestudies in its files, and lacked only a
"summary sheet" interpreting the timestudies. De-
spite the difficulties engendered by the new incen-
tive rate system, Respondent denied the Union's re-
quest that it supply the timestudies immediately
and allow the Union to make its own analysis of
the data. In these circumstances, Huber's attempt
to hasten a resolution of the dispute by advocating
that employees engage in protected concerted ac-
tivity could not form a lawful basis for discipline.
Accordingly, I would find that Respondent violat-
ed Section 8(a)(3) and (1) of the Act when it dis-
charged, and later converted to a reinstatement
without backpay, Huber.
In view of my finding concerning Huber's dis-
charge, it follows that I would find that the strike
in protest of the discharge was an unfair labor
practice strike and, thus, not prohibited by the con-
tractual no-strike clause.
' Huber's conduct is therefore unlike that in Midwest Precision Castings
Company, 244 NLRB 597 (1979), where the Board held that a steward
lawfully was discharged (ater converted into a disciplinary layoff) for
urging another employee to engage in a work slowdown. The conduct
here is more akin to that in Pacific Coast Utilities Service, Inc., 238 NLRB
599 (1978), and Clara Barton Terrace Convalescent Center, a Division of
National Health Enterprises-Delfern. Inc, 225 NLRB 1028 (1976).
299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
WALTER H. MALONEY, JR., Administrative Law
Judge: This case came on for hearing before me at Mil-
waukee, Wisconsin, upon an unfair labor practice com-
plaint,' issued by the Acting Director for Region 30 of
the National Labor Relations Board, which alleges that
Respondent G & H Products, Inc., 2 violated Section
8(a)(1) and (3) of the National Labor Relations Act, as
amended. More particularly, the complaint alleges that
Respondent discharged Shop Steward Thomas Huber be-
cause of his vigorous presentation of a grievance, that it
discharged probationary employees Jack Gerber, Mike
Mortenson, and Daniel Moore because they evidenced
union sympathies and an intention to join a picket line at
the conclusion of their probationary period, and dis-
charged nonunit clerical employee Suzanne Westphal be-
cause she struck in sympathy with other employees. The
complaint also alleges that company supervisors unlaw-
fully interrogated employees concerning their union sym-
pathies. Respondent asserts that it discharged Huber for
insubordination and that the Board, under its Spielberg
doctrine,3 should defer to the award of an arbitrator who
concluded that Huber had been disciplined for insubordi-
nation.' It denies any unlawful interrogation, asserts that
a strike which erupted to protest the discharge of Huber
was unprotected activity because it took place in viola-
tion of a no-strike clause in an existing contract, that
Gerber, Mortenson, and Moore were discharged for
cause and that any intention on their part to join the
picket line at the conclusion of their probationary period
was unprotected because the picket line itself was an ex-
ercise in unprotected activity. Respondent also contends
that Westphal was discharged for insubordination in re-
fusing to do bargaining unit work which was assigned to
her during the strike. Upon these contentions, the issues
herein were joined. I
The principal docket entries in this case are as follows: charge filed
by Lodge 34, International Association of Machinists and Aerospace
Workers, AFL-CIO (herein called the Union or Lodge 34), against Re-
spondent on January 9, 1980; complaint issued by Acting Director,
Region 30, on March 24, 1980: Respondent's original answer filed on
March 31, 1980; Respondent's first amended answer filed on August 21,
1980; hearing held in Milwaukee, Wisconsin, on August 26-29, 1980;
briefs filed with me by the General Counsel and Respondent on October
14, 1980.
z Respondent admits, and I find, that it is a Wisconsin corporation
which maintains its place of business in Kenosha, Wisconsin, where it is
engaged in the manufacturing and nonretail sale and distribution of ma-
chinery and equipment used in the dairy, food, and industrial processing
industries. In the course and conduct of this business, Respondent, in the
course of a year, sold and shipped from its Kenosha, Wisconsin, plant di-
rectly to points and places located outside the State of Wisconsin good
and materials valued in excess of S50,000. Accordingly, Respondent is an
employer engaged in commerce within the meaning of Sec. 2(2), (6), and
(7) of the Act. The Union is a labor organization within the meaning of
Sec. 2(5) of the Act.
' Spielberg Manufacturing Company, 112 NLRB 1080 (1955).
'As discussed more fully, infia the arbitrator felt that discharge was
too severe a penalty for Huber's insubordination, so he ordered the Re-
spondent to reinstate Huber without backpay.
' Errors in the transcript have been noted and corrected.
1. THE UNFAIR LABOR PRACTICES ALLEGED
For a number of years, Respondent has maintained an
office and a production facility at Kenosha, Wisconsin,
where it makes stainless steel fittings. It bends, machines,
and welds various connections to these fittings, which
are then sold to customers in the dairy and food process-
ing industries Respondent also makes pumps and clean-
ing units for the same customers. In December 1979,
when the events in this case transpired, Respondent em-
ployed approximately 100 hourly paid production and
maintenance employees who were, and are, represented
by Lodge 34. This unit was covered by a collective-bar-
gaining agreement which was signed on November 4,
1977, and which expired on July 1, 1980. Of consequence
in this case are a provision in that contract requiring
union membership of all employees following their 30th
day of employment, a grievance procedure providing for
the grieving and ultimate submission to an arbitrator of
any unresolved dispute between an employee (or the
Union) and the Company concerning a claim of breach
or violation of the agreement, a provision exempting pro-
bationary employees from the protection of the griev-
ance machinery during their first 45 working days, and a
complicated incentive plan which establishes the frame-
work for providing incentive rates covering work done
by about 75 percent of the members of the bargaining
unit. Also of consequence is a provision in the agreement
which states that "the Company agrees that there will be
no lockout, and the Union agrees that there will be no
strike, slowdown, or stoppage during the life of this con-
tract." Respondent has also promulgated shop rules
which include a provision authorizing discharge for in-
subordination, an infraction which is defined as "actions
or statements which indicate deliberate and willful refus-
al to comply with a proper request or demand."
Shortly after the contract came into effect in 1977, Re-
spondent established temporary incentive standards for
the setting up and tearing down of machinery used for
various production activities. Included in these incentive
standards were temporary rates applicable to employees
operating the Number Five turret lathes. These rates ap-
plied to approximately 10 employees on 2 shifts. In order
to claim the benefit of an incentive rate during the setup
or teardown of a lathe, each operator was required to
submit to his foreman at the end of shift a pink or
salmon-colored card which contained the punched-in
time that he began the operation and when he finished it
or quit for the day. The card also contained additional
information, including the rate assigned for the job and
the time authorized for it to be accomplished. The failure
of an employee to turn in such a card, or the making of
incomplete or erroneous entries on the card, could result
in loss of incentive pay until such time as a properly
filled out card had been approved by the foreman and
forwarded to the payroll department. Similar cards were
used to calculate incentive pay due for production work
when the lathes were in actual operation.
On Friday, November 30, Respondent decided to con-
vert the temporary setup and teardown rates on Number
Five turret lathes into new permanent rates and to ac-
company this change with the introduction of new setup
300
G & H PRODUCTS, INC.
and teardown cards. The new cards contained the same
information to be found on the existing pink cards but re-
quired the entry of more detailed information than was
called for by the existing cards. The setting up and tear-
ing down of lathes between production runs are of vary-
ing difficulty and complexity and can consume differing
amounts of time depending upon the demands of the job
to be run. A setup may take from three-fourths of an
hour to 3 hours to complete. The new cards provided
for the entry of individual times alloted to each compo-
nent element of the particular operation which was as-
signed, whereas the pink cards simply recorded the total
time which was allotted to the whole operation. Before
announcing the permanent rates and the introduction of
the new cards to employees, Marvin Wertz, the vice
president in charge of production, held a meeting with
Plant Superintendent Richard Zanella and various fore-
men involved with the supervision of work on the
Number Five turret lathe. The purpose of the meeting
was to inform them of the establishment of permanent
rates for setups and teardowns and to discuss the intro-
duction of new cards which, from then on, had to be
filled out by each lathe operator for each setup and tear-
down. During this meeting, the supervisors in attendance
learned that the new cards were similar to those already
in use at Respondent's Poughkeepsie, New York, plant.
A notice announcing these changes was posted on the
bulletin board at the plant during the weekend.
On Monday morning, December 3, as lathe operators
came to work, Day-Shift Foreman Fred Vance handed
them the new cards and told them that they had to fill
one out on each job. He informed the employees that
any failure on their part to fill out the cards would be
regarded as insubordination. A number of the lathe oper-
ators voiced their displeasure at receiving the cards,
complaining that the rates established were impossible to
make and that they would end up making only their base
rate. Most of the operators were puzzled by the new
cards and had numerous questions concerning how to fill
them out.
During the morning, David Pagliaroni, the chairman
of the Union's shop committee, asked Zanella for the
data which justified the imposition of the new rates. Zan-
ella told him that he would have it available to him
Tuesday afternoon or Wednesday morning. The same re-
quest was made to Zanella by Thomas Huber, one of the
Union's committeemen, and he received the same
answer. s Zanella forwarded the request to the industrial
engineer who had performed certain timestudies in an-
ticipation of the announcement of the installation perma-
nent rates. He was told to organize the data and put it in
sequential form so that it would prove to be more under-
standable to the union committee. Later on in the day,
Pagliarioni, after consultation with Huber, filed a written
grievance concerning the substance of the rates and gave
it to Vance.' This grievance was ultimately denied.
' On this same date, Pagliarioni requested Vance to provide him with
such data and was told it would be available in a day or two.
I The Union claims that it filed a second grievance concerning delay
by Respondent in providing it with backup information to justify the new
rates. Respondent claim either that no such grievance was ever filed or
On Tuesday, December 4, Huber again requested the
backup data from Thomas Jeffery, the manager of manu-
facturing. Because of several difficulties which had arisen
on the previous day regarding how to fill out the cards,
Vance called a meeting of day-shift turret lathe operators
in his office about 9:30 a.m. in order to discuss the
proper procedure to be followed in this regard. The dis-
cussion became quite heated and, in the course of it,
Huber entered the room and began to take part. Eventu-
ally Zanella, who was passing through the area, was
asked to join the discussion. Various operators were
complaining that the rates were too low and they would
end up making only their base rate. They argued with
Vance about the substance of the rates and Huber said
that he was going to advises the lathe operators not to
fill out the new cards unless the Company supplied the
Union with data proving that the rates were legitimate.
On this occasion, Huber again asked Zanella for the
backup data and was again told that he could have it in a
couple of days.
About I p.m. Huber was called into the company
office to see Jeffrey and Zanella. Also present were
Vance and Pagliaroni. The latter was summoned to serve
as Huber's representative. Jeffery confronted Huber with
the remark, made at the meeting in Vance's office and
attributed to him, that he would advise lathe operators
not to fill out the new cards until backup data justifying
the new rates was provided to the Union. Huber ad-
mitted making this statement. Jeffery told him that such
a statement amounted to insubordination and asked
Huber to retract it. Huber refused. Jeffery asked him
again to retract it and he again refused. During the
course of this discussion, Huber asked to have Gerhard
Roemer, his business agent, present at the meeting and
told Jeffery that, if Roemer told him to retract the state-
ment, he would do so. When it appeared that Huber re-
mained adamant in his position, Jeffery and Zanella dis-
charged him, saying that it was for insubordination.
Vance then accompanied Huber as he left the plant,
giving him an opportunity to collect his tools and to file
a written grievance.
Within minutes following the discharge of Huber, the
entire shop walked out. Pagliaroni told departing work-
ers that the strike was not authorized and that they
should remain on the job, but they paid no attention to
him. Eventually Pagliaroni left as well. The strike lasted
from December 4 until January 22. During that period of
time, the Union picketed Respondent's premises and Re-
spondent continued its production efforts with the use of
foremen, probationary employees, and clerical employ-
ees. On January 22, the Union made an unconditional
offer to return to work and Respondent accepted the
offer with respect to all employees for whom there were
openings. It made no attempt to impose upon striking
workers any sanctions which might have been available
that it was filed and withdrawn. For purposes of this proceeding, it is
unnecessary to resolve this peripheral question of fact.
' Respondent claims that, on this occasion, Huber stated to the assem-
bled employees that he would "instruct" them not to fill out the new
cards until backup data was supplied. It made little difference to the arbi-
trator whether Huber used the word "advise" or "instruct" and it makes
little difference to me.
301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to it under the provisions of the no-strike clause of the
contract.
On December 10, Jeffery phoned Roemer and told
him that the data which had been requested was availa-
ble. He invited Roemer and the union committee to
come to the plant on December 11 to inspect it. Because
of the strike they declined the offer. On December 19,
the union committee and management representatives
met at a nearby motel for the fourth step of the griev-
ance relating to Huber's discharge. On this occasion, the
requested data was supplied to union committee mem-
bers and they were given about 45 minutes to review it.
Respondent denied Huber's grievance at the fourth
step so it went to arbitration. On April I and May 12,
1980, hearings were held on the grievance before arbitra-
tor Neil M. Gundermann. Following the hearings and
the submission of briefs, Gundermann issued a 17-page
arbitration award, dated August 7, 1980, in which he
found that Respondent was justified in disciplining
Huber for insubordination but that the penalty exacted
was too severe under the circumstances. He ordered Re-
spondent to offer Huber reinstatement but without back-
pay. Respondent complied with the award but, as of the
time of the hearing in this case, Huber had not actually
returned to work because of the existence of a strike, to-
tally unrelated to the issues in this case, which began
when the contract expired on July 1.
Early in November, Respondent hired the three al-
leged discriminatees who were discharged on January 7.
In accordance with paragraph 74 of the contract, they
were deemed to be probationary employees during the
first 45 working days of their employment.9 Mike Mor-
tenson and Daniel Moore were hired at the beginner's
rate. Jack Gerber, who claimed experience as a lathe op-
erator, was given a base rate which was 10 cents higher
than the beginner's rate.
Before the strike began on December 4, Moore was
placed into department 100. He was assigned by Fore-
man Don Brickel, who had interviewed him, to be a
sweeper, working under the general supervison of Fore-
man Harley Studdard. As his job title suggests, Moore
initially spent most of his time during janitorial and
cleanup work. Brickel told him at the time of the hiring
interview that he would be evaluated once a week.
Moore never received any formal evaluations, either
orally or in writing. After the strike began and the shop
was nearly empty, Moore continued to report for work.
As was the case with the other probationary employees
who continued to work during the strike, Moore came in
each morning but did not report to a particular supervi-
sor. After he would report in, any foreman who needed
'Par. 74 provides:
Employees hired for the first time, and former employees rehired
after their seniority has terminated, will be regarded as probationary
employees for the first forty-five (45) working days of actual work
for the Company. Such period shall be considered as a trial period to
permit the Company to determine such probationary employees' fit-
ness and adaptability for the work required and during such proba-
tionary period, the Company shall have the exclusive right to termi-
nate such employees without the action being subject to review. Pro-
bationary employees continued in the service of the Company after
the completion of forty-five (45) days of actual work shall receive
full continuous service credit from the date of original hiring.
help would then assign him to whatever job he was
qualified to do. As a result, Moore moved from job to
job throughout the plant.
While Moore received no formal evaluations from Re-
spondent's supervision during his probationary period, he
did receive or hear comments from supervisors which
led him to believe he was doing an acceptable job. He
received no adverse comments from anyone concerning
his work. In mid-December, Moore heard Studdard, to
whom he had originally been assigned, state to another
foreman, Roland Buechner, that he was a hard worker. '"
I credit Moore's testimony that, just before Christmas,
Jeffery handed him his paycheck, informed him of the
days on which the plant would be closed during Christ-
mas week, and told Moore he appreciated the good
work he was doing and the way he and the other proba-
tionary employees were jumping from job to job. Short-
ly after the first of the year, Studdard had a brief con-
versation with Moore in front of the supervisor's office.
He told Moore that he was a good employee and would
like to see him continue to work for G & H after his
probationary period was completed. He went on to say
that there were two kinds of union members, a voting
member and a nonvoting member, and told Moore that
he could still join the Union as a nonvoting member.
Then he asked if Moore was going to join the strike or
continue working. Moore said that he had not made up
his mind, whereupon Studdard told him that he would
talk with him again at the end of the week. Shortly
thereafter, Moore reported this conversation to Vance.
Vance informed him that he had only one choice, which
was to join the Union. Moore told Vance he knew he
had to join because he had previously been a union
member and knew that he had to join in order to work
at G & H because it was a "closed shop."
On Moore's final day of employment, he was working
for Vance and was assigned to rivet 3-inch clamps. Later
in the day, he switched jobs. About 3 p.m. Vance told
him to finish out his day sweeping but informed Moore
that he had a "hot job" for him to do the following
morning. Moore testified without contradiction that the
incentive rate which he earned for that day was 169 per-
cent. At the end of the day, Studdard informed Moore
that the Company was going to let him to because he
had not "lived up to the Company's expectations."
Moore objected and questioned Studdard as to what he
had done wrong. Studdard simply replied that he was
unsatisfactory and said nothing more. Moore then spoke
with Vance and told Vance that he had just been fired.
Vance's reaction was, "You've got to be kidding,"
adding that he was beginning to get fed up with the way
things were being run and was thinking about getting out
himself.
Mortenson was hired by Respondent as a sweeper
about the same time that Moore was hired. He was
placed on the second shift and was later transferred to
the first shift after the strike began. He continued to
work during the strike and was assigned to various jobs,
including the loading dock and operating the punch
'° Studdard, who is still a foreman for Respondent, did not testify.
302
G & H PRODUCTS, INC.
press. Like Moore, Mortenson received no formal evalu-
ations, either oral or written, during his probationary
period. However, in November, both Buechner and
Foreman David "Skip" Ritchie told him that he was
doing a pretty good job. 1 I credit Mortenson's testimony
that, on the final workday before the Christmas holiday,
Jeffery gave him his paycheck and thanked him for all
the good work he was doing. At no time did Mortenson
receive any unfavorable comments concerning his work.
Before coming to work for Respondent, Mortenson had
been a member of a Machinists local other than Lodge
34. He brought his withdrawal card from that local to
work and asked a Lodge 34 steward, Chip Pabrelski,
whether the card was any good and whether it would
save him from paying another initiation fee. Pabrelski did
not know because the card was 3 years old so he asked
Buechner. Buechner, a former union member, looked at
the card and said he did not know either, but suggested
to Mortenson that he turn the card in and see what hap-
pened.
Just before New Year's, Jeffery again passed out pay-
checks and, in the course of handing one to Mortenson,
asked him if he had any difficulty getting through the
picket line. Mortenson replied no, whereupon Jeffery
stated that the Company realized that, if he were not a
probationary employee, he would be out on the picket
line with the rest of the employees. On January 7, at the
end of the shift, Buechner informed Mortenson that he
was being terminated. Mortenson asked if he had done
anything wrong. Buechner simply replied that "unsatis-
factory work performance" was the official reason. As in
the case of Moore, this was the first time Mortenson had
received any adverse comments regarding his work.
On November 1, 1979, Jack Gerber was hired by
Foreman Ritchie as a lathe operator and went to work
on an engine lathe. Gerber had several years of machine
shop experience and had been a member of a Machinists
local other than Lodge 34. Ritchie testified that, while
Gerber had told him that he had 7 years' experience as a
setup man and leadman, he was inexperienced in one
aspect of setup work; namely, tool grinding. During the
first month of his employment, Gerber made a mistake
on one occasion by running an order of extensions which
were shorter than the specification. Ritchie told him to
be careful about his measurements. On another occasion,
Gerber had his tools set wrong when he ran a reducer
and was told he was not grinding his tools properly. Rit-
chie also spoke with him on another occasion about
being low on the efficiency list for certain incentive jobs
that he was running. However, during the last week of
his employment, he ran one job at 180 percent of the in-
centive rate. nS
During one conversation, Ritchie asked Gerber what
he was going to do when his 45 days were up. Gerber
replied that he would have to join the Union and go out
with the rest of the union members. (Gerber in fact had
1 Buechner did not testify at the hearing. Ritchie admits making this
statement but says his remarks were limited to a specific cleanup job to
which Mortenson was assigned.
'" It should be noted that incentive jobs at Respondent's plant were
usually rated so that normally an employee was expected to work at 120
percent of the rate, not at 100 percent.
executed a Lodge 34 checkoff authorization on Novem-
ber 7 and had turned it into Respondent.) Ritchie replied
that he understood Gerber's point of view.
On January 7, Zanella spoke with Ritchie and asked
him whether he thought Gerber should be retained or
discharged. Ritchie said that Gerber had not made any
progress in grinding tools, so Zanella told Ritchie that he
should be discharged. Ritchie then informed Gerber at
the end of the shift that he was being fired for unsatisfac-
tory performance.
After the end of the shift on January 7, after it became
known that Moore, Mortenson, and Gerber had been
fired, Vance voiced to other foremen his personal amaze-
ment at this action, saying that he did not know what the
Company expected "from these guys because they could
not have done any more." Studdard simply said that he
had fired Moore because "they told him to do it."
On the following morning, Suzanne Westphal reported
to work as usual. Westphal was a salaried clerk in the
office shop and had been hired in early November at the
same time that the three alleged discriminatees, who
were discharged on January 7, had been hired. She was
not covered by the provisions of the collective-bargain-
ing agreement between Lodge 34 and Respondent.
Before the strike began, her job was to post amounts
noted on work production cards and to do typing as re-
quested. After the strike began, this work dried up so
Wirtz assigned her to do production work. She worked
regularly during the strike and, on various occasions, op-
erated the cone machine, the polishing machine, and the
drill. On January 8, the day following the discharges of
Moore, Mortenson, and Gerber, she reported to work as
usual about 7:30 a.m. About 9:30 a.m., Vance told her to
run the cone machine and she refused. She told him that
she was upset about the discharge of the three probation-
ary employees and stated that she was not going to run
any more machines as a protest against the discharges.
Her refusal was immediately brought to the attention of
Zanella, who told her that he was surprised by her atti-
tude. She said she was fed up with just getting thanks at
the end of the week for the production work she was
doing (she received no incentive pay) but added that she
was not quitting. Zanella told her that she might as well
collect her belongings. She told Zanella that she would
be glad to do the office work she was hired to do and, if
he could find some for her to do, she would do it,
adding that there were plenty of girls in the front office
who could be asked to run the machines. Zanella replied
that there was enough work in the front office to keep
that clerical force busy. She also told Zanella that she
could not understand why the three probationary em-
ployees had been fired and she was disgusted by this
event. Zanella then fired Westphal.
While all production employees who went on strike
were permitted to return to work on January 22 to the
extent that jobs were then available, reinstatement was
never offered to the four individuals who were dis-
charged on January 7 and 8.
303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. ANALYSIS AND CONCLUSIONS
A. Deferral to the Arbitrator's Award Concerning the
Huber Discharge
Shortly before the hearing opened, one of the issues
framed by the complaint in this case, the discharge of
Thomas Huber, was resolved under the grievance ma-
chinery established by the parties herein. The arbitrator
to whom the grievance was referred found that Huber
was disciplined for insubordination, not for exercising his
functions as a shop steward in a vigorous but lawful
manner. The arbitrator then went on to do what the
Board may not do-he evaluated the discharge in light
of Huber's service and other surrounding circumstances,
found the penalty imposed upon him did not fit the in-
fraction, and ordered Huber reinstated but without back-
pay. Respondent complied with the award and offered to
put Huber back to work.
The General Counsel urges that the Board should not
defer to this award because it did not fulfill the require-
ments of the Board's Decision in Spielberg Manufacturing
Company, supra, and specifically because the arbitrator
did not address the unfair labor practice which is the
gravamen of the General Counsel's complaint. The con-
tention is without merit. The requirement that, in order
to be worthy of deferral, an arbitration award must spe-
cifically address the merits of the unfair labor practice al-
leged by the General Counsel has been the subject of nu-
merous and varying Board decisions. See Raytheon Com-
pany, 140 NLRB 883 (1963); Electronic Reproduction
Service Corporation, et aL, 213 NLRB 758 (1974); Atlantic
Steel Company, 245 NLRB 814 (1979); Suburban Motor
Freight, Inc., 247 NLRB 146 (1980). The most recent
pronouncement on this subject indicates that, before the
Board will defer to an arbitration award and deem it to
be in consonance with the purposes and policies of the
Act, the arbitrator must actually address and resolve the
unfair labor practice at issue in the complaint case. Bay
Shipbuilding Corporation, 251 NLRB 809 (1980). He may
not leave the question to inference or merely touch upon
it in passing.
In this case, both parties argued to the arbitrator their
respective contentions as to whether the discharge of
Huber was an unfair labor practice prompted by his ac-
tivities as shop steward in presenting a grievance. Citing
Midwest Precision Castings Company, 244 NLRB 597
(1979), the arbitrator found that Huber's comments advo-
cating a refusal by employees to obey orders were out-
side the umbrella of protection afforded to a shop ste-
ward by Section 7 of the Act and concluded that he was
guilty of insubordination. Having addressed and resolved
question which the General Counsel raised in the com-
plaint in this case, the arbitrator clearly complied with
the requirements laid down by Spielberg and its most ex-
acting progeny. Accordingly, I will defer to his award in
this case and dismiss that portion of the complaint relat-
ing to the discharge of Thomas Huber.
Having deferred to the award of the arbitrator insofar
as it resolves the rights and remedies of Huber, a ques-
tion remains as to whether I must also defer to the
rationale underlying this award insofar as it has a chain
reaction effect on the rights and remedies of other discri-
minatees in this case who were not before the arbitrator
and who, under the terms of the contract, could not
have sought relief under its grievance machinery. " With
respect to these individuals, Respondent presents an ar-
gument which has tight internal consistency and which
proceeds in a series of syllogisms which do honor to
Aristotelian logic. Respondent argues that, if, as the arbi-
trator found, Huber was disciplined for cause, the strike
which followed must have been unprotected by the Act
because it violated the terms of a no-strike clause which
was then in full force and effect. Ergo, anyone else who
was disciplined for participating in the strike, or who
was disciplined because Respondent thought he might
participate in the strike, could have no better standing
than the original strikers themselves. Ergo, even if other
employees were fired because they looked longingly at
the unprotected picket line, such activities must necessar-
ily be unprotected, so the complaint must be dismissed as
to them as well. For purposes of this Decision, I will not
go behind the arbitrator's findings as to Huber and will
assume, without deciding, that the strikers who walked
out on December 4 to protest the Huber discharge were
not unfair labor practice strikers but were violating the
provisions of the no-strike clause. However, I will not
follow Respondent's chain of logic to the ultimate con-
clusions urged upon me because as is more fully devel-
oped later, to follow this course would result in expand-
ing the scope of the no-strike clause beyond the plain
and normal meaning of its words to the detriment of
other individuals who were without recourse under the
contract here in question.
B. The Reasons for the January 7 Discharges
Moore, Mortenson, and Gerber were discharged on
the same day for the same reason-unsatisfactory per-
formance. To fill their places, Respondent hired new
probationary employees who could be relied upon to
work at least 45 days despite the fact that the plant was
being picketed. In Moore's case, the nature of his unsatis-
factory performance was not made clear to him at the
time of his discharge nor was it clarified at the hearing in
this case. The purpose of a probationary period is to de-
termine the fitness and aptitute of an individual to
become a permanent employee. Moore was told at the
outset of his employment that he would be evaluated
once a week. There is testimony in the record from a
management witness that Respondent frequently, though
not always, makes written evaluations of probationary
employees. None was made respecting Moore or any of
the others who were discharged with him, and at no
time during this testing period was Moore given any in-
dication that his performance was other than satisfactory.
In fact, on more than one occasion Moore was told, or
heard, that supervisors at the plant regarded him as a sat-
isfactory employee. His termination on January 7 for
poor performance was both abrupt and unexpected, not
only by himself but also by one of the foremen for
" Discriminatees Moore, Mortenson, and Gerber were probationary
employees and could not grieve their discharges. Westphal wa not in the
bargaining unit and could claim no rights of any kind under the contract
giving rise to the arbitrator's jurisdiction.
304
G & H PRODUCTS, INC.
whom he was working. Vance expressed not only to
Moore but to others his amazement and displeasure with
what higher management officials had done with respect
to all three discriminatees.
Like the other two who were fired on January 7,
Moore worked under unusually stressful conditions after
the beginning of the strike. Not only did he have to
cross the picket line-something that apparently both
sides to the dispute expected he would do during his pro-
bationary period-but he was thrown into a variety of
jobs with little or no training and performed them with
scant supervision. His ability to perform well under such
unusual circumstances was recognized by Jeffery. Just a
few days before his discharge, one of his supervisors,
Studdard, told him that he would like to see him contin-
ue with the Company after the completion of the proba-
tionary period which would soon be coming to an end.
On the same occasion that Studdard told Moore he
would like to see him stay on, Studdard also asked him if
he was going to join the strike when his 45 days were
completed. In and of itself, a question such as this may
well be justified, in that an employer has the right to
make inquiry of its employees as to whether they will or
will not work during a strike so that it can gauge its
manning requirements. Mosher Steel Company, 220
NLRB 336 (1975); Banker's Dispatch Corporation, 233
NLRB 300 (1977). However, Studdard went beyond a
simple inquiry. He told Moore on this occasion that
there were two kinds of union members, voting members
and nonvoting members, and informed Moore that he
could join the Union under the applicable union-security
clause and still remain a nonvoting member. This asser-
tion by Studdard, namely, that there are two classes of
union membership, was merely an oblique way of telling
Moore that he did not have to be an active or enthusias-
tic union member, despite the contractual requirement
that he join Lodge 34 as a prerequisite of continued em-
ployment, and was an encouragement by Studdard, cou-
pled with the interrogation noted above, to be a union
dissident. Accordingly, I regard Studdard's remarks,
when viewed all together, to constitute unlawful interfer-
ence with rights protected by Section 7 of the Act and a
violation of Section 8(a)(l1).
Respondent's witnesses admitted on the stand that they
fully expected all probationary employees to join the
picket line in front of the plant as soon as their proba-
tionary periods were completed. They timed the dis-
charges of these individuals to coincide with this antici-
pated event. As to Moore, Respondent's assertion at the
time of his termination, as well as at the hearing, to the
effect that he was an unsatisfactory employee contradict-
ed evaluations of his work that had been expressed to
him on earlier occasions. I reject, as untenable and
absurd, the testimony of Ritchie that the he did not tell
Moore or Mortenson during their probationary periods
that they were performing in an unsatisfactory manner
because he simply wanted to watch them perform with-
out management prompting in order to see how they
paced themselves. Such a contention is at odds with
other management testimony that written evaluations
were sometimes given to probationary employees and
also contradicts what Moore was told when he was
hired in; namely, that he would be evaluated once a
week. Ritchie's statement, if regarded as an actual state-
ment of company practice and not merely a hastily con-
trived response to an embarrassing question, would also
mean that Respondents probationary period was a sham
because, as Ritchie was forced to admit, if new employ-
ees were not told during this period what their short-
comings were, they would have no way of knowing if
they were living up to the Company's expectations. In
light of these considerations, I conclude that Moore was
not actually discharged on January 7 because of unsatis-
factory performance. Respondent's contention in this
regard is pretextual. Moore was in fact discharged be-
cause Respondent anticipated that, in a few days, when
his probationary period was completed, he would join
the other employees who were engaged in a strike and
were then picketing Respondent's plant.
I come to the same conclusion with respect to Morten-
son, whose discharge followed the same fact pattern dis-
cerned in Moore's case. Mortenson was hired and fired
at the same time as Moore. He was initially hired for the
same type of menial labor but was assigned to a variety
of jobs which he performed without adverse comment
during the strike. He was never formally evaluated in the
course of his employment. What comments he did re-
ceive during this period of time were made orally by
management representatives and were favorable. It was
not until he was fired that Mortenson was told that his
work was unsatisfactory, and even then he was given no
particulars. First level supervisors, who were in the best
position to observe his day-to-day performance, did not
share the view of higher management that Mortenson
was an unsatisfactory employee and made comments in-
dicating that they were unable to account for this unfa-
vorable evaluation. Respondent knew that Mortenson
had been a member of a Machinists local when working
for another employer and, as in the case of Moore, it
fully expected that he would join the other union mem-
bers on the picket line as soon as his probationary period
was completed and he could look to the contract griev-
ance machinery for protection. For these reasons, I be-
lieve that Respondent's asserted reason for discharging
Mortenson was pretextual and conclude that, in fact, it
discharged him because it anticipated that he would soon
go on strike.
Gerber's case is a little closer than the cases of Moore
and Mortenson but does not require a different result.
Gerber was hired at 10 cents more per hour than the rate
offered to Moore and Mortenson because Gerber
claimed to have experience as a machinist. Apparently he
was not experienced in all of the facets of Respondent's
operation and was told on two occasions early in his em-
ployment about certain minor deficiencies which had
been observed in his performance. However, his lack of
experience or proficiency in the particular skills required
by the Respondent did not prevent him from obtaining a
high incentive rate during the week immediately preced-
ing his discharge.
Gerber was a union member and had executed a
checkoff authorization shortly after coming to work for
Respondent. Not long before he was fired, Gerber was
305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogated by Ritchie concerning what he planned to
do when his probationary period was over. Gerber can-
didly told Ritchie that he thought he would go out on
strike along with the rest of the employees. Like Moore
and Mortenson, Gerber was given no formal evaluations
at any time during the probationary period, although
presumably a probationary period is a time when such
evaluations are most critical. Even when work deficien-
cies had been noted early on in his employment, Gerber
was given no warning that he would be discharged if he
did not improve. In light of these factors, I conclude that
the reason asserted for his discharge was pretextual and
that Gerber, like Moore and Mortenson, was discharged
on January 7 because Respondent anticipated that he too
would soon be on strike.
C. The Legal Character of the Discharges of Moore,
Mortenson, and Gerber
The conclusion that Moore, Mortenson, and Gerber
were in fact discharged because Respondent anticipated
that they would soon go on strike, and not because of
deficiencies in their job performances, does not dispose
of the legal issue raised on their behalf in the complaint.
Indeed, this factual conclusion pushes us squarely into
the thorniest legal question in this case. It is well estab-
lished that the discharge of an employee which is effec-
tuated because an employer anticipates that he may or
will go on strike constitutes a violation of Section 8(a)(l)
and (3) of the Act. Appalachian Power Company, 204
NLRB 184 (1973), enfd. 490 F.2d 140 (4th Cir. 1974);
Don Brentner Trucking Co., Inc., 232 NLRB 428 (1977).
However, Respondent argues that this general proposi-
tion has no application to the facts of this case because
here the underlying strike is an unprotected strike, called
by employees who were acting in violation of a no-strike
clause, so anyone who acts in concert or participation
with the strikers can have no better standing than they
do. In support of its contention Respondent cites R-W
Service System, Inc., 243 NLRB 1202 (1979), a case
which in turn found support in the Board's earlier Deci-
sion in Bechtel Corporation, 170 NLRB 1128 (1968).
In R-WService System, the Board held that an employ-
er was lawfully entitled to discharge an employee when
it learned that he had participated in an unprotected
wildcat strike while employed by another company, be-
cause the strike in question was unprotected so any dis-
charge prompted by such unprotected activity, remote in
time though it may be, could not fall within the ambit of
Section 7 of the Act. In Bechtel, the Board found that an
employer was legally entitled to deny employment to an
applicant who had previously instigated an unprotected
strike among the respondent's own employees. Cf. The
Newark Morning Ledger Co. d/b/a Newark Star Ledger,
232 NLRB 581 (1977). In my view, these cases are not
controlling here and, if applied here to determine the
rights and remedies as to Moore, Mortenson, and
Gerber, would serve to enlarge the scope of the no-strike
clause involved in this dispute beyond the plain and ob-
vious meaning of its terms.
The pertinent provision in the contract between Lodge
34 and Respondent stated that "the Company agrees that
there will be no lockout, and the Union agrees that there
will be no strike, slowdown, or stoppage during the life
of this contract." The no-strike clause did not provide
that there will be no threatened, rumored, or anticipated
strike during the life of the agreement. Its language
spoke in terms of actual, not possible, events and did not
prohibit scuttlebutt, surmise, or possible activity. It was
designed to protect Respondent against actual injury, not
threatened or possible injury. If, in fact, Moore, Morten-
son, and Gerber had actually gone on strike and had ac-
tually joined the other employees on the picket line, Re-
spondent's reliance upon Bechtel and R- W Service System
might have a firmer foundation. However, these three
men never did anything to violate the terms of the con-
tract. One of them suggested to a supervisor that he
would probably go out at the end of 45 days and the
other two never took any definite stand, but Respondent
herein would expand the language of the contract and
the statute relating to no-strike clauses to incorporate the
common law doctrine of anticipatory breach. I know of
no case which goes so far.
As indicated by Studdard's conversation with Moore,
Respondent's concern with the activities of probationary
enployees went beyond mere curiosity about who would
be available for work. Respondent was interested in en-
couraging flaccid, lackadasical support for the Union-
"a non-voting member"-and was concerned lest addi-
tional employees with militant attitudes gain a permanent
place on its payroll and the protection of the grievance
machinery, so it discharged these three employees be-
cause it felt they were the kind of people who would
strike, not because they had ever done anything to vio-
late the contract herein or any other contract. Accord-
ingly, I conclude that the discharges of Moore, Morten-
son, and Gerber were effectuated to discourage union ac-
tivity generally, not merely participation in the strike at
hand, and as such violated Section 8(a)(1) and (3) of the
Act.
D. The Discharge of Suzanne Westphal
Westphal was discharged on January 8 when she re-
fused to do certain production work to which she had
been assigned during the strike. Westphal was not a
member of the bargaining unit and was not restricted by
any contractual limitations on her Section 7 rights. She
was legally free to strike in protest of Huber's discharge,
even if that discharge had been properly and lawfully
made, and her action would have been protected by the
Act at any time it occurred, since the protest of lawful
discharges is an economic strike with all the attendant
rights which attach to such activity. See N.LR.B. v.
John S. Swift Company, Inc., 277 F.2d 641 (7th Cir.,
1960), and cases cited therein. The fact that Westphal
might have waited from December 4 to January 8 to
engage in such activity is immaterial.
It is also quite immaterial that others who were pro-
testing the Huber discharge might have been engaging in
unprotected activity. Her legal standing to strike is de-
rived from statute and from the purposes she had in
striking, not from the status of others who might have
been contractually prohibited from doing the same thing.
Any other rationale would simply serve to extend to
306
G & H PRODUCTS, INC.
Westphal, a nonunit employee, the terms, conditions, and
restrictions found in a contract which did not cover her
employment. As a stranger to this contract, she was not
bound by its provisions. Hoffman Beverage Company, 163
NLRB 981 (1967).
However, the facts of this case clearly demonstrate
that her refusal on January 8 to do work which she had
been doing without objection until that time clearly indi-
cates that her action was designed to protest the dis-
charges of Moore, Mortenson, and Gerber which had
taken place the previous afternoon. Her statement to
Vance makes this fact quite explicit. If, as found herein,
Moore, Mortenson, and Gerber were discharged in viola-
tion of the Act, it follows that Westphal was more than
an economic striker, namely, an unfair labor practice
striker, and should enjoy the broader protection which
the Act gives to such individuals.
The last string in Respondent's bow relating to West-
phal is that her activity, even if it be protected in terms
of object, was not protected in terms of method and did
not constitute concerted activity but was merely the
action of a single employee. Westphal informed Zanella
that she was not quitting. She also told him that she
would continue to do any clerical work which was as-
signed to her and for which she was originally hired.
What she refused to do from that time on was the bar-
gaining unit work of running production machines.
There was nothing intermittent or "stop-and-go" about
this announcement. With respect to the other aspects of
her announcement, the Board has held in several cases
that clerical employees are engaged in protected concert-
ed activities when they refuse to cross a picket line or
when they refuse to do struck work while expressing a
willingness to continue to perform their regular clerical
chores. The Cooper Thermometer Company, 154 NLRB
502 (1965); Valmac Industries, Inc., 217 NLRB 580
(1975); General Tire & Rubber Company, 190 NLRB 227
(1971); N.L.R.B. v. Peter Cailler Kohler Swiss Chocolates
Company, Inc., 130 F.2d 503 (2d Cir. 1942); N.L.R.B. v.
Southern Greyhound Lines, Division of Greyhound Lines,
Inc., 426 F.2d 1299 (5th Cir. 1970). If Zanella had no
clerical work for Westphal to do on January 8, he might
lawfully have laid her off until such work resumed, but
when he fired her for engaging in a strike to protest an
unfair labor practice, he violated Section 8(a)(1) and (3)
of the Act. I so find and conclude.
Upon the foregoing findings of fact and upon the
entire record herein considered as a whole, I make the
following:
CONCLUSIONS OF LAW
1. Respondent, G & H Products, Inc., is now and at all
times material herein has been engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Lodge 34, International Association of Machinists
and Aerospace Workers, AFL-CIO, is a labor organiza-
tion within the meaning of the Act.
3. By discharging Daniel Moore, Michael Mortenson,
Jack Gerber, and Suzanne Westphal because of their
union sympathies or because they engaged in union ac-
tivities, Respondent herein violated Section 8(a)3) of the
Act.
4. By the acts and conduct set forth above in Conclu-
sion of Law 3, and by interfering with the protected
rights of employees by interrogating them while urging
them to become inactive union members, Respondent
herein violated Section 8(a)(1) of the Act.
5. The Board will defer to the determination of arbi-
trator Neil M. Gunderman relating to the discharge of
Thomas Huber.
6. The aforesaid unfair labor practices have a close, in-
timate, and adverse effect on the free flow of commerce,
within the meaning of Section 2(6) and 2(7) of the Act.
REMEDY
Having found that Respondent herein has engaged in
certain unfair labor practices, I will recommend that it
be required to cease and desist therefrom and to take
certain affirmative action designed to effectuate the pur-
poses and policies of the Act. The recommended order
will also provide that the Respondent be required to
offer reinstatement to Daniel Moore, Michael Morten-
son, Jack Gerber, and Suzanne Westphal, and that it be
required to make them whole for any loss of pay or
benefits which the have suffered by reason of the dis-
criminations found herein, to be computed according to
the Woolworth formula,"4 with interest thereon assessed at
the adjusted prime rate used by the U.S. Internal Reve-
nue Service for tax payments. Olympic Medical Corpora-
tion, 250 NLRB 146 (1980); Isis Plumbing & Heating Co.,
138 NLRB 716 (1962). I will also recommend that Re-
spondent be required to post a notice, advising its em-
ployees of their rights and of the remedy in this case.
Upon the foregoing findings of fact, conclusions of
law, and upon the entire record herein considered as a
whole, and pursuant to Section 10(c) of the Act, I make
the following recommended:
ORDER '
The Respondent, G & H Products, Inc., and its offi-
cers, supervisors, agents, successors, and assigns, shall:
i. Cease and desist from:
(a) Coercively interrogating employees and interfering
with their Section 7 rights by asking them to become in-
active union members.
(b) Discouraging membership in and activities on
behalf of Lodge 34, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, or any other
labor organization by discharging employees or other-
wise discriminating against them in their hire or tenure.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed to them by Section 7 of the Act.
"F W. Woolworth Company, 90 NLRB 289 (1950).
'5 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.
307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative actions designed to
effectuate the purposes and policies of the Act:
(a) Offer to Daniel Moore, Michael Mortenson, Jack
Gerber, and Suzanne Westphal full and immediate rein-
statement to their former or substantially equivalent em-
ployment, without prejudice to their seniority or to other
rights which they previously enjoyed, and make them
whole for any loss of pay suffered by them by reason of
the discriminations found herein, in the manner described
above in the section 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, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at Respondent's Kenosha, Wisconsin, place of
business copies of the attached notice marked "Appen-
dix."' 6 Copies of said notice, on forms provided by the
Regional Director for Region 30, after being duly signed
by a representative of Respondent, shall be posted imme-
diately upon receipt thereof, and shall be maintained by
Respondent for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
is In the event that 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
Insofar as the complaint alleges matters which have
not been found to be violations of the Act, the complaint
is hereby dismissed.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees
and interfere with their Section 7 rights by suggest-
ing to them that they become inactive union mem-
bers.
WE WILL NOT discourage membership in and ac-
tivities on behalf of Lodge 34, International Associ-
ation of Machinists and Aerospace Workers, AFL-
CIO, or any other labor organization, by discharg-
ing employees or otherwise discriminating against
them in their hire or tenure.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce employees in the
exercise of rights guaranteed them by Section 7 of
the Act.
WE WILL offer full and immediate reinstatement
to Daniel Moore, Michael Mortenson, Jack Gerber,
and Suzanne Westphal to their former or substan-
tially equivalent positions, and WE WILL make them
whole for any loss of pay or benefits which they
have suffered by reason of the discriminations prac-
ticed against them, with interest.
G & H PRODUCTS, INC.
308