General Thermo, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1980

250 N.L.R.B. 1260 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Thermo, Inc. and International Union,
United Automobile, Aerospace & Agricultural
Implement Workers of America (UAW) and
Richard E. McMahon. Cases 33-CA-3942-1
and 33-CA-3942-2
July 31, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On October 9, 1979, Administrative Law Judge
James M. Fitzpatrick issued the attached Decision
in this proceeding. Thereafter, both Respondent
and the General Counsel filed exceptions and sup-
porting briefs.
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 only to the extent consistent herewith.
The facts, as more fully set forth in the Adminis-
trative Law Judge's Decision, show basically the
following with respect to the 8(a)(3) allegations of
the complaint:
Respondent manufactures and sells radiators and
industrial heat transfer units. Richard McMahon
was employed as a radiator assembler from January
1977 until his discharge on September 26, 1978.2
He had occasional difficulties with both his attend-
ance and his production quotas but was never dis-
ciplined for these deficiencies. Supervisor Tom Gil-
more reprimanded McMahon at least three times
regarding his failure to wear safety glasses and
placed written warnings on this matter in McMa-
hon's file in April, May, and July. Gilmore's gener-
al dissatisfaction with McMahon's work led him to
recommend in July to Plant Manager Miller that
McMahon be discharged. Miller's position, howev-
er, was that every effort be made to salvage
McMahon as an employee. No disciplinary action
was taken at that time.
Union activity in Respondent's plant began in
August with employee concern for wages, safety
hazards, and equipment problems. McMahon and
Both the General Counsel and Respondent have excepted to certain
credibility findings made by the Administrative Law Judge. It is the
Board's established policy not to overrule an administrative law judge's
resolutions with respect to credibility unless the clear preponderance of
all of the relevant evidence convinces us that the resolutions are incor-
rect. Standard Dry Wall Products. Inc., 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing his findings.
' All dates hereinafter are in 1978.
two other employees contacted the UAW for in-
formation and help in organizing. An initial orga-
nizing meeting, originally scheduled for September
20 at McMahon's home, was eventually held on
October 5. It is undisputed, as found by the Ad-
ministrative Law Judge, that at least by September
9, the date of the company picnic, all members of
Respondent's management knew of McMahon's
leadership role in the incipient organizing efforts.
On the morning of September 26, Assistant Plant
Manager Bohn received from an employee a report
that McMahon had just threatened physical vio-
lence against employee Starr, although not in
Starr's presence. The Administrative Law Judge
found that the employee who had overheard
McMahon accurately reported his words. Howev-
er, the Administrative Law Judge then found it un-
likely that the threat was intended seriously since
McMahon was known to make extravagant state-
ments and, further, he and Starr were friends.
To investigate the reported threat, Bohn had
McMahon and Tom Gilmore come to his office.
McMahon vehemently denied making any threat.
According to Gilmore and Bohn, both credited by
the Administrative Law Judge, McMahon's protes-
tations of innocence were both loud and profane.
At that point Bohn discharged McMahon.
Respondent, in a memorandum dated September
27 and placed in McMahon's personnel file, listed
the following alleged rule violations as its reasons
for the discharge: (1) leaving the plant early with-
out authorization on September 9 and 25; (2) "nu-
merous" warnings as to his failures to wear safety
glasses; (3) a reduction in productivity for August
accompanied by complaints from other employees
as to his poor work habits; (4) threats of violence
directed against Tom Gilmore in August and Sep-
tember and against Starr on September 26; and, fi-
nally (5) "obnoxious" behavior during the Septem-
ber 26 meeting with Gilmore and Bohn.
In evaluating Respondent's asserted grounds for
the discharge, the Administrative Law Judge found
first, with respect to the early departures, that
McMahon had permission to leave early on both
September 9 and 25. Secondly, as to McMahon's
allegedly threatening behavior, the Administrative
Law Judge found, as indicated supra, that the
remark about beating up Starr was neither intended
seriously nor made directly to the intended victim.
Further, the Administrative Law Judge credited
McMahon's denial that he had threatened Tom
Gilmore at the September 9 company picnic. He
further discredited Respondent's reliance on
rumors, circulating in the plant during August and
September, that McMahon had threatened Tom
Gilmore. In addition to McMahon's credited
250 NLRB No. 158
1260
GENERAL THERMO, INC.
denial, there was no testimony from any individual
who had actually heard such rumors and Gilmore
himself admitted that he neither took the rumors
seriously nor made any effort at the time to con-
front McMahon directly.
Thus, the Administrative Law Judge found, and
we agree, that these critical portions of Respond-
ent's justification relating to the early departures
and the threats, both actual and rumored, do not
support McMahon's discharge. We do not agree,
though, with the Administrative Law Judge's fur-
ther finding that Respondent's remaining reasons,
notations in McMahon's file involving safety and
productivity infractions and McMahon's personal
deportment at the September 26 meeting, constitut-
ed the actual reasons for the discharge.
The Administrative Law Judge's summary of the
General Counsel's case led him to the brink of an
8(a)(3) finding. However, where he stopped we
would go on to find the violation. In our view, all
of Respondent's asserted reasons were pretextual.
We note that the Administrative Law Judge did
find all the elements of an 8(a)(3) violation. The
timing of the discharge was suspicious and Re-
spondent had displayed, prior to the discharge,
both union animus and knowledge of McMahon's
leadership role in the organizing efforts. McMahon
was discharged only 2 weeks after heated argu-
ments about unionization at the September 9 com-
pany picnic between Bohn and several employees,
including McMahon. At that time Bohn violated
Section 8(a)(l) by interrogating employees, by
giving them the impression that their union activi-
ties were under surveillance, and by threatening
the discharge of union activists.
As happens so frequently, the factual question of
discrimination in this case turns on circumstantial
evidence. Here the Administrative Law Judge
found that Respondent, after the elimination of its
unsupported reasons, did have justifiable grounds
for dismissing McMahon. The Administrative Law
Judge cites Klate Holt Company3 for the proposi-
tion that if an employer discharges an employee in-
volved in "unwelcome concerted activities" for be-
havior that would warrant a discharge in the ab-
sence of union or concerted activities then "the cir-
cumstance that the employer welcomed the oppor-
tunity to discharge does not make it discriminatory
and therefore unlawful." However, it is equally
well established that the existence of a justifiable
ground for dismissal is no defense if it is a pretext
used to mask an unlawful motive.
The record persuades us that McMahon was dis-
charged because of his protected union activities,
as maintained by the General Counsel, and not for
3 161 NLRB 1606, 1612 (1966).
any reason listed by Respondent in its memoran-
dum of September 27. The five-part justification
contained in that memorandum includes, by the
Administrative Law Judge's own findings, two
grounds without support in the record. These are
the alleged rule infractions relating to early depar-
tures and threatening behavior. To be sure, other
reasons found valid by the Administrative Law
Judge were advanced in support of Respondent's
decision. However, even partial reliance on un-
founded reasons to justify a discharge casts doubt
on the Respondent's underlying motives.
Further, it is undisputed that at the September 26
meeting Respondent chose to confront McMahon
only with the single issue of the alleged threats.
The discharge occurred at the point when Re-
spondent decided that McMahon's loud and abu-
sive protestations of innocence had become exces-
sive. The fact that three of the five reasons ad-
vanced in the post-discharge memorandum were
never communicated to McMahon at the time of
his discharge supports our inference that the rea-
sons set forth in the discharge memorandum were
constructed as an afterthought to conceal Respond-
ent's true motive-which was to eliminate the
leader of the union movement.4
In further support of this conclusion we also find
that Respondent's reliance on McMahon's safety
violations and on his productivity drop is itself sus-
pect. The discharge took place approximately 10
weeks after the most recent safety reprimand and
the contemporaneous management decision to try
to "salvage" McMahon's employment. With re-
spect to the file notation on McMahon's productiv-
ity drop, we note that it was made on August 9, 7
weeks before the discharge. Yet, the September 27
memo refers to a substandard quantity of work
"continually" during the month of August. Re-
spondent was not able to produce production rec-
ords for the radiator assembly department and thus
could not substantiate its contentions as to McMa-
hon's output at any time during the summer of
1978. Thus, the long hiatus between the occurrence
of the purported reasons for the discharge and the
discharge itself suggests to us that Respondent's
stated policy of attempting to salvage problem em-
ployees is set aside when they engage in protected
organizing activities.
Finally, the record does not support Respond-
ent's contention that McMahon's loud and profane
behavior during the September 26 interview justi-
fied his discharge. As found by the Administrative
Law Judge, such behavior was habitual to McMa-
4 The Administrative Law Judge found that at the September 9 picnic
Bohn stated that "union big shots" could be fired. McMahon's discharge
is thus a fulfillment of this prophecy
1261
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hon. In addition, "cursing was a way of life at the
plant," and there is no evidence of prior disciplin-
ary efforts by Respondent to curb it. Indeed, Bohn
himself became flustered and cursed during the in-
terview with McMahon. Under these circum-
stances, we find Respondent's reliance on McMa-
hon's conduct during the interview to be pretex-
tual.
While there is no direct proof that McMahon
was dismissed because of his union activities, such
direct proof is not required in this case as a basis
for a finding of discrimination. We have found that
Respondent's justifications for McMahon's dis-
charge are false-contrived pretexts unsupported
by the facts. In the absence of any credible expla-
nation for the discharge by Respondent, we are
compelled to draw the inference that the discharge
was motivated by reasons prohibited by the Act.5
In light of McMahon's leadership role in the
union effort, Respondent's knowledge based on il-
legal surveillance and interrogation, and the timing
of the discharge, we therefore find that the reasons
advanced at the hearing for the discharge of
McMahon were pretextual in nature, and that Re-
spondent discharged McMahon for his leadership
efforts in the union organizing campaign. Accord-
ingly, we conclude that by discharging McMahon
Respondent violated Section 8(a)(3) and (1) of the
Act.
THE REMEDY
We have found, contrary to the Administrative
Law Judge, that Respondent engaged in certain
unfair labor practices in violation of Section 8(a)(3)
and (1) of the Act by discharging Richard E.
McMahon on September 26, 1978. In our opinion,
it is necessary in order to effectuate the purposes of
the Act that Respondent be ordered to cease and
desist from engaging in such unfair labor practices
and to reinstate Richard E. McMahon to his
former job or, if such job no longer exists, to a sub-
stantially equivalent position, without prejudice to
his seniority or other rights and privileges. We
shall order Respondent to make him whole for any
loss of earnings he may have suffered because of
the discrimination practiced against him by pay-
ment to him of a sum equal to that which which he
normally would have earned from the date of the
discrimination to the date Respondent offers him
reinstatement, less his net earnings during that
period. Backpay shall be computed in the manner
set forth in F. W Woolworth Company, 90 NLRB
' Shattuck Denn Mining Corporation (Iron King Branch) v. N.L.R.B.,
362 F.2d 466, 470 (9th Cir. 1966).
289 (1950), with interest as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).6
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
4:
"4. Respondent violated Section 8(a)(3) and (1)
of the Act by discharging Richard E. McMahon
on September 26, 1978."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
General Thermo, Inc., Maquoketa, Iowa, its offi-
cers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interrogating employees about their union
sympathies and desires, about the identity of union
supporters, or about union activities.
(b) Imparting to employees the impression that
union activities are under surveillance by manage-
ment.
(c) Directly or inferentially threatening employ-
ees that union activists will be discharged because
of their union activities.
(d) Interfering with the protected rights of em-
ployees to discuss freely terms and conditions of
their employment or the pros and cons of union
representation.
(e) Discharging or otherwise discriminating
against any employee for the purpose of discourag-
ing employees from engaging in union activity.
(f) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Richard E. McMahon immediate and
full reinstatement to his former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to his seniority or other
rights and privileges previously enjoyed, and make
him whole for any loss of pay which he may have
incurred by reason of Respondent's discrimination
against him in the manner described in "The
Remedy" section of this Decision.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
6 See, generally, Isis Plumbing d Heating Co.. 138 NLRB 716 (1962).
1262
GENERAL THERMO. INC.
amount of backpay due under the terms of this
Order.
(c) Post at its Maquoketa, Iowa, plant copies of
the attached notice marked "Appendix." 7 Copies
of said notice, on forms provided by the Regional
Director for Region 33, after being duly signed by
Respondent's representative, shall be posted by it
immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or cov-
ered by any other material.
(d) Notify the Regional Director for Region 33,
in writing, within 20 days from the date of this
Order, what steps Respondent has taken to comply
herewith.
7 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"
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties participated,
the National Labor Relations Board has found that
we violated the National Labor Relations Act. We
have been ordered to post this notice and to abide
by its terms.
The Act gives employees the following rights:
To act together for collective bargaining
or for mutual aid or protection
To engage in self-organization
To form, join, or help unions
To bargain collectively through repre-
sentatives of their own choosing
To refrain from any or all these things.
WE WILL NOT interrogate employees about
their union sympathies and desires, or about
the identity of union supporters, or about
union activities.
WE WILL NOT give employees the impres-
sion we are keeping union activities under sur-
veillance.
WE WILL NOT threaten that union activists
will be discharged.
WE WILL NOT interfere with the rights of
employees to freely discuss their terms and
conditions of employment or the pros and
cons of union representation.
WE WILL NOT discharge or otherwise dis-
criminate against employees for the purpose of
discouraging employees from engaging in
union activity.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of the rights guaranteed them by
Section 7 of the Act.
WE witll offer Richard E. McMahon imme-
diate and full reinstatement to his former job
or, if such job no longer exists, to a substan-
tially equivalent position without prejudice to
his seniority or other rights and privileges and
WE WILL make him whole for any loss of
earnings suffered by reason of his unlawful dis-
charge, with interest.
GENERAL THERMO, INC.
DECISION
STATEMENT OF THE CASE
JAMES MI. FITZPATRICK, Administrative Law Judge: In
this case, an employee of doubtful value was trying to
organize a union at the time he was fired. The main issue
is whether the employer's motive was sufficiently found-
ed in antiunionism to make the discharge an unfair labor
practice. Further issues are whether management inter-
fered with employee rights by questions and statements.
Preliminary issues involve the supervisory status of two
working supervisors. As set out more fully below, I find
they were not supervisors under the Act, and that al-
though management verbally interfered with employee
rights, the discharge of the union activist was lawful iii
the circumstances.
The case arises from two charges of unfair labor prac-
tices filed October 12, 1978,1 by International Union,
United Automobile, Aerospace & Agricultural Imple-
ment Workers of America (UAW) (herein the Union),
and by Richard E. McMahon, an individual, against
General Thermo, Inc. (herein Respondent). The two
matters were consolidated and, on November 15, a con-
solidated complaint issued alleging that Respondent en-
gaged in violations of Section 8(a)( ) of the National
Labor Relations Act, as amended (the Act), at a compa-
ny picnic on September 9, when its officers interrogated
employees about union activities, threatened them with
discharge for union activities, and gave them the impres-
sion such activities were under company surveillance.
During the hearing herein the complaint was amended to
allege that on January 2, 1979, Respondent threatened to
discharge an employee for engaging in union activity.
The complaint further alleged that, on September 26, Re-
spondent, in violation of Section 8(aX3) of the Act, dis-
charged Richard E. McMahon, and has since refused to
All dates herein are in 1978 unless otherwise indicated.
1263
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reinstate him, because of his union activities. Respondent
answered the complaint, denying that it interfered with
employee rights or that discrimination was involved in
McMahon's discharge. Also at issue is the alleged super-
visory status of Charles Gilmore and Rick Starr. The
case was heard at Maquoketa, Iowa, on February 8 and
9, 1979.
Based on the entire record, including my observation
of the witnesses and consideration of the briefs filed by
the General Counsel and Respondent, I make the follow-
ing:
FINDINGS OF FACT
I. THE EMPLOYER
A. Commerce
Respondent, an Iowa corporation, is engaged at Ma-
quoketa, Iowa, in the manufacture and sale of radiators
and industrial heat transfer units. During the calendar
year preceding issuance of the complaint, it sold and
shipped from its Maquoketa plant directly to points out-
side Iowa finished products valued over $50,000 and
during the same period bought and had delivered to that
plant, directly from points outside Iowa, goods and ma-
terials valued over $50,000. Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
B. Management Structure and Responsibility
During the autumn of 1978, the period most pertinent
to the issues here, the Maquoketa plant employed ap-
proximately 125 persons in three shifts, 60 on the first, 40
on the second, and 20 on the third. The management
team consisted of Donald Miller, plant manager and vice
president, Ronald Bohn, assistant plant manager and vice
president since September 1, and Tom Gilmore, David
Knoebel, and Robert Gerring, foremen whose duties in-
cluded the hiring, firing, and disciplining of employees
and direction of them through 16 working supervisors.
Whether two of these working supervisors, Charles Gil-
more and Rick Starr, were supervisors within the mean-
ing of the Act is disputed.
Plant production operations include five areas, an as-
sembly area, and a pouring area, a bake-oven area, a core
assembly area, and a toolroom area.
C. The Status of Working Supervisors
The General Counsel contends, and Respondent dis-
putes, that during September Rick Starr and Charles Gil-
more were supervisors whose conduct is attributable to
Respondent.
1. Status of Rick Starr
Although Starr described himself as a working super-
visor, he had no authority to hire, fire, discipline, sus-
pend, lay off, recall, or promote employees. He was as-
signed to the so-called pour area in which radiator cores
were soldered. He took his instructions from Foreman
Tom Gilmore. His responsibilities included implementing
such instructions as to what work had to be completed
and when, which items had to be poured, and when and
how much solder had to be used. He informed the other
employees performing the work what they had to do,
and was responsible for their performing the work. In
addition, if work was improperly performed, he re-
worked it.
Unlike higher supervision, Starr did not attend man-
agement meetings. Also he was not salaried, as were the
members of higher supervision, but received an hourly
wage, as did rank-and-file employees. But because of his
additional responsibilities, he received extra pay. Al-
though he did not hire or fire, he gave higher supervi-
sion oral evaluations of employees under him. On one
occasion in late September he reported an employee for
refusing to perform certain work. That employee was
called to the office of Assistant Plant Manager Bohn and
reprimanded in Starr's presence. Bohn directed Starr to
watch the employee and ensure that he did his work.
I note that in this relatively small plant there were 16
"working supervisors" at the same general level. Starr
had some responsibility for the crew working with him,
but it appears to have been narrowly limited to ensure
that the particular function of soldering was properly ac-
complished. Much of what he did was routine, undoubt-
edly requiring know-how beyond that of many rank-and-
file employees, but not involving substantial independent
judgment respecting other employees. When any signifi-
cant question arose he reported to, and deferred to the
judgment of, the foreman. He was a conduit for convey-
ing instructions from the foreman to the crew and for re-
porting back to the foreman. I find that Starr was a lead-
man without sufficient responsibilities or independent dis-
cretion to qualify him as a supervisor during September
within the meaning of Section 2(11) of the Act. Accord-
ingly, his conduct is not imputable to Respondent.
2. Status of Charles Gilmore
Like Starr, Gilmore was a leadman with no authority
to hire, fire, discipline, or recommend such. He did not
attend supervisory meetings nor did he receive a salary.
Like Starr he was paid by the hour but also received
extra compensation for his additional responsibilities.
Prior to September he was assigned responsibility for
two daytime operations, the copper pen machine with
one employee, and the core pushing function performed
by eight employees. In addition he retained some mainte-
nance responsibilities for equipment in the plant. Bohn
described him as a working supervisor. He took direction
from, and reported to, Tom Gilmore. Like Starr he gave
oral evaluations about employees under his direction.
Upon receiving instructions from Tom Gilmore, he as-
signed specific functions to particular employees, assisted
in setting up the equipment, and, during the performance
of the work, checked on its progress.
His duties were routine, not shown to have involved
substantial discretion at the time in question. As with
Starr, I find that Charles Gilmore did not possess suffi-
cient supervisory authority to qualify him as a supervisor
within the meaning of Section 2(11) of the Act.
1264
GENERAL THERMO, INC.
II. THE UNION AND COMPANY POLICY
The UAW is a labor organization within the meaning
of Section 2(5) of the Act.
The Maquoketa plant has always been a nonunion op-
eration. Company policy opposing unionization is set
forth in the employee manual distributed to all employ-
ees at the time of hire. In addition, all the management
officials who testified, including Plant Manager Miller,
Assistant Plant Manager Bohn, Foreman Thomas Gil-
more, and even working Supervisors Charles Gilmore
and Rick Starr, frankly admitted they did not favor a
union in the plant.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Employment of Richard McMahon
The alleged discriminatee, Richard E. McMahon, was
hired January 20, 1977. His regular assignment was as a
radiator assembler on the first shift. At the time of his
discharge on September 26, 1978, he was temporarily as-
signed to wash headers. During his employment he re-
ceived pay raises, the last about 3 weeks before his dis-
charge. These were not merit increases but rather were
plantwide and automatically given to all hourly employ-
ees.
Respondent contends that he was a problem employee
and the record bears this out. At various times he had
difficulty maintaining a satisfactory level of production
although he was never disciplined for this. He intermit-
tedly had poor attendance. His foreman, Thomas Gil-
more, often had difficulty getting him to wear safety
glasses as required by plant rules. Gilmore's dissatisfac-
tion with him, although in part based on personal dislike,
reached the point in mid-May 1978, when lie discussed
the problems with Plant Manager Miller with the inten-
tion of laying the ground work for his discharge. He did
not at that time, however, recommend discharge. When
reprimanded for not wearing safety glasses, McMahon
invariably grumbled but in each instance put the glasses
on. But Gilmore had no assurance they would stay on.
When reprimanded on other matters, McMahon ordinari-
ly responded by temporarily improving and then again
falling into error.
In July, Gilmore again spoke with Miller about
McMahon and this time recommended discharge. Miller,
however, put him off, saying they should make every
effort to salvage him as an employee.2 On this basis,
McMahon continued in the Respondent's employ until
his discharge on September 26, suddenly and without
warning.
B. Union Activity
On August 21, during breaktime Melva Polkinghorn
approached her fellow employee McMahon and his co-
worker Clayton Shady to complain about the disparate
wages for women. The three also discussed safety haz-
ards on the job, equipment problems, and material short-
ages. She suggested that they needed a union. McMahon
and Shady agreed with her. When McMahon asked how
2 McMahon, who is Illiterate, supports himself, a wife, and four chil-
dren.
they could start one, she replied that she knew some
people to contact. He volunteered to contact them about
forming a union. He said he would be president. Shady
said he would be vice president. They both said Melva
could be secretary.
Melva testified without contradiction that on that oc-
casion she also drafted a petition for equal pay and better
working conditions which they circulated among other
employees. One other employee, Gary McAvon, who
was antiunion, testified that as early as August he knew
McMahon was trying to organize a union.
Based on information obtained by Melva Polkinghorn,
McMahon made efforts to start a formal organization.
He dispatched his wife, Wanda, to Dubuque on Septem-
ber 12 to discuss organizing with a representative of the
UAW. The representative instructed her to find out how
many were employed at Respondent's plant and how
many might be interested in a union, and that the UAW
would shortly contact her. On or about September 15,
UAW International Representative Thomas Long tele-
phoned McMahon from Des Moines and arranged for an
initial organizing meeting at the McMahon home on the
evening of September 20. Thereafter McMahon invited
between 10 and 15 employees to the meeting. Some ex-
pressed opposition, including his longtime friend, Rick
Starr.
The September 20 meeting was later rescheduled for
September 27 (the day after McMahon's discharge) be-
cause of a conflict in Long's schedule and was thereafter
reset again for October 5 for the same reason. When the
initial organizing meeting was finally held on October 5,
an effort was made to obtain authorization cards from
those attending. Only seven or eight signatures were ob-
tained. No further meetings have been held.
C. Company Knowledge of Union Activity
Assistant Plant Manager Bohn arrived on duty the first
of September. He previously had been employed in a su-
pervisory capacity with Young Radiator Company, a
competitor of Respondent. During his tenure at Young
that company experienced a UAW organizing campaign
and an extended economic strike. When Bohn came to
Maquoketa he endeavored to orient himself in the prob-
lems of employee relations. At that time he heard rumors
about union organizational activities but he himself ob-
served nothing specific to substantiate the rumors. But at
least by the time of the company picnic on September 9,
it was plain to all members of management, including
Bohn, that some employee support for a union existed
and that McMahon was a prime mover in that direction.
D. McMahon 's Threats Against Gilmore
One of the several grounds on which Respondent
relies to justify its discharge of McMahon is that he had
threatened to harm Foreman Tom Gilmore. There is no
evidence that he directly threatened Gilmore nor is it
satisfactorily established he in fact made statements to
others which were threatening to Gilmore. The record
shows that Gilmore heard rumors that McMahon threat-
ened him. But no one who actually heard McMahon
make such statements testified.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Tom Gilmore, whom I credit in this re-
spect, an employee named Paul Shannahon told him 2 or
3 weeks prior to the company picnic on September 9
that he had overheard McMahon in a tavern making re-
marks threatening to Gilmore. The nature of these so-
called threats is not established. Shannahon did not tes-
tify nor is his absence explained.
At some time during September, quite a while before
McMahon's discharge, Bohn also heard that or a similar
rumor and spoke with Gilmore about it. Gilmore told
him to "just let it slide." Neither of them confronted
McMahon about the rumor.
On the morning of the company picnic, September 9,
Tom Gilmore heard a rumor at the plant that McMahon
was "going to get him at the picnic." Gilmore testified
that he really did not think McMahon would do any-
thing.
Tom Gilmore also testified that subsequent to hearing
one of these rumors (he was not clear which nor did he
pinpoint the time) he observed McMahon drive past his
home and a short time later come back in the other di-
rection. He thought this was odd because McMahon
lived some distance on the other side of the community.
I find the above evidence unworthy of any weight in
explaining the discharge. In the first place, the sources of
the rumors were never tested at the hearing. It is not es-
tablished that any threats in fact were ever made. Sec-
ondly, Tom Gilmore admittedly did not take the rumors
seriously and no contemporaneous efforts were made to
confront McMahon with them. Thirdly, with respect to
the argument that somehow McMahon indulged in
threatening conduct by operating his truck in an unlaw-
ful manner on a public way, absent some firm back-
ground that McMahon in fact threatened Gilmore, I find
such evidence valueless.
The above conclusions are further supported by gener-
al denials of McMahon that he engaged in conduct or ut-
tered remarks threatening to Tom Gilmore.
E. McMahon's Early Departure on September 9
Another ground relied on by Respondent to justify its
discharge of McMahon is that he left the plant during
working hours on September 9 and 25 without permis-
sion.
September 9 was a Saturday and the occasion of the
company picnic scheduled to begin around noon. How-
ever, the plant operated as usual during the morning
hours. Being a Saturday, those working were on over-
time. Acceptance of Saturday duty was optional but,
once accepted, it was understood that the employee
would complete the shift which normally started at 6
a.m. and ran until II a.m. or 12 noon.
On the morning of September 9, McMahon punched in
at 5:50 and punched out at 7:35. He did not return. Ac-
cording to his uncontradicted testimony, he left in order
to obtain a part for his truck and at the time he left he
told Tom Gilmore, his foreman, who was standing by
the test tank, that he was leaving. Gilmore told him to
go ahead. Because of the picnic, others were also leaving
early. McMahon received no verbal reprimand at that
time or thereafter for leaving early on that occasion.
Based on the foregoing, I find that on September 9
McMahon had permission to leave early and, therefore,
Respondent's reliance on that incident to partially justify
his discharge is misplaced and without basis in fact.
F. The Company Picnic, Generally
After leaving work on the morning of the picnic,
McMahon took care of his personal business and then
went home. He drank a couple of beers, ate his dinner,
and took a nap. About 1:30 in the afternoon his cowork-
er, Clayton Shady, awakened him and they left together
for the picnic. On the way they purchased a six-pack of
beer, which they drank, and a fifth of peppermint
schnapps, some of which they drank. They arrived at the
picnic around 2:30 and remained about 2 hours.
The picnic was a social event for employees and their
families, including children. Soft drinks and draft beer
were available. At the picnic McMahon gave what was
left of the peppermint schnapps to Rick Starr. He himself
drank draft beer. The weight of the evidence establishes
that at the picnic McMahon, who normally was loud in
conversation, was somewhat intoxicated and as a conse-
quence was louder than usual and indulged in vulgar lan-
guage. He of course was not the only person drinking
nor were his vulgarities the only ones uttered. But his
conduct was emphasized by his loudness.
Bohn testified that at the picnic a number of employ-
ees were saying he arrived drunk and he made remarks
that he was going to get Tom Gilmore at the picnic, and
that, in view of this, he (Bohn) cautioned Gilmore to be
careful. Bohn did not specify the source for this informa-
tion. He himself, apparently, did not hear McMahon
utter such remarks. No one hearing such remarks testi-
fied and, in fact, no one but Bohn testified that others
had heard such remarks. McMahon denied he made such
threats. I credit his denial as being more substantial evi-
dence than the unsubstantiated hearsay reported by
Bohn.
G. Discussions at the Picnic
At the picnic Bohn, who prior thereto was generally
unacquainted with plant employees, took the opportunity
to mix and converse with them. He was asked many
questions about his past experiences, including his tenure
with Young Radiator Company. He responded by telling
them what he had previously done and, of his own voli-
tion, told them of a 9-1/2-month strike conducted by the
UAW at Young. He said both sides had lost during the
strike and some of the union officials were replaced in
elections.
One of the groups which he approached included
Victor DuBois, Clarence Polkinghorn, and Jerry Hold-
grafer. After introducing himself, Bohn inquired whether
they had any complaints or problems. DuBois replied
that some newer employees were earning more money
than oldtimers. Bohn promised to look into it. He then
inquired what they thought about the Union. DuBois an-
swered that he did not think they needed one because all
the employees would be doing was paying the union
dues. Sometime during the discussion Bohn asked if he
knew who was involved in the Union, indicating he al-
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GENERAL THERMO, INC.
ready knew McMahon and Shady were. According to
Clarence Polkinghorn, Bohn, referring to the Union,
stated that there was a woman in on the deal but he had
no idea who she was and he would like to talk with her.
Knowing that his ex-wife, Melva Polkinghorn, was the
woman involved, he left the group to get her.
Shortly thereafter Melva joined the group. DuBois in-
troduced her to Bohn as a person who was doing a
man's job but was not being paid for it. He further said
that was one reason some employees wanted a union.
Bohn said he would look into it and get back to her later
in the week. In the course of the conversation he indicat-
ed he knew that McMahon and Shady were promoting
the Union. He gave his opinion that the employees did
not need a union, that things could be worked out, and
he further spoke of his experiences at Young Radiator
where, according to him, the union did not back up the
employees, and a long strike occurred. According to
Melva, he said that big shots in a union can be fired.
And he further said that things could work out in time
and that they would not need a union. She is corroborat-
ed by DuBois.
Later in the afternoon, McMahon joined a group in-
cluding Bohn, Charles Gilmore, the Polkinghorns, and
an employee named Huey. Huey was complaining to
Bohn that employees with less seniority than he were
earning more than he and also that certain working con-
ditions were not good. Bohn declared he was there to
straighten such things out. McMahon then interjected
that the way to straighten them out was to get a union
in. Bohn asked him if he was the one that was starting
the Union. McMahon admitted he was one of them. The
discussion continued with McMahon favoring the union
side and Bohn and Charles Gilmore opposing. The talk
became loud and heated, McMahon indulging in consid-
erable profanity and Bohn responding in kind. According
to McMahon, Charles Gilmore declared that McMahon
and Shady were nothing but troublemakers and that
McMahon only had 2 weeks left. He testified that Don
Miller, the plant manager, agreed with that statement.
Miller did not testify. But Charles Gilmore denied he
made a statement threatening the discharge of McMa-
hon. According to him, he gave his opinion that, if
McMahon's production would improve, he would have
no problem at the plant and that 2 weeks would show
whether it would improve. He denied saying that McMa-
hon would be discharged in 2 weeks. According to him,
it was McMahon who was talking of getting fired.
Insofar as Charles Gilmore and McMahon contradict
each other, I credit McMahon even though the record as
a whole indicates he was under the influence of alcohol.
I do so because he is corroborated by Melva Polkingh-
orn who was standing nearby and whose attention was
caught by the yelling and profanity. She testified as fol-
lows:
Then Charlie (Gilmore) turned around and poked
his finger at Richard (McMahon) and said you'd
better be damned sure you get a union here in the
next 2 weeks because that's all the time you've got
to do it.
Clarence Polkinghorn corroborates this version.
H. Conclusions Respecting Events at the Picnic
The complaint alleges that at the picnic Bohn commit-
ted a variety of violations of Section 8(a)(l) of the Act
including unlawful interrogation, threats of discharge,
and giving the impression of surveillance of union activi-
ties. The complaint also alleges that Miller and Charles
Gilmore each made unlawful threats of discharge.
With respect to these latter allegations, I find they are
without merit. Miller is not shown by substantial evi-
dence to have made such a threat. McMahon's testimony
that Miller was present during the argument with
Charles Gilmore is uncorroborated. Considering McMa-
hon's condition, his uncorroborated testimony is insuffi-
cient to establish that Miller adopted the statement of
Charles Gilmore. As to Charles Gilmore, although his
remarks considered in the context of other events were
clearly threatening, his conduct is not attributable to Re-
spondent because he is not shown to be a supervisor or
an agent of Respondent at the time of the company
picnic.
As to Bohn, however, I find the Act was violated. He
asked DuBois what he thought about the Union. He also
asked him if he knew who was involved in the Union,
saying that he already knew about McMahon and Shady
and that a woman was involved but he did not know
who she was. This questioning was unlawful interroga-
tion and also imparted to employees the reasonable im-
pression that he was checking up on those involved in
the union movement and had those activities under sur-
veillance. When McMahon later joined the conversation
and asserted that the way to straighten out problems was
to get a union, Bohn asked him if he was the one that
was starting the Union. I find this also was an unlawful
interrogation. The Board has long held that the social
nature of an occasion does not eliminate the interfering
and coercive aspect of questions and statements by man-
agement officials. Metropolitan Life Insurance Company,
166 NLRB 553 (1967).
In talking with DuBois and Melva Polkinghorn, and
possibly others, Bohn also made statements which could
only be understood as a threat that organizers of a union
could be fired. In arguing against the need for a union,
Bohn said, according to Melva Polkinghorn, that big
shots in a union can be fired. He then said that they
could work things out in time and would not need a
union. There is no question but that this was an unlawful
threat. Glass Guard Industries, Inc., 212 NLRB 285
(1974).
1. McMahon's Early Departure on September 25
As already noted, Respondent contends it was justified
in discharging McMahon on September 26 for a variety
of reasons including his leaving the plant without permis-
sion on September 4 and 25. His timecard shows that on
Monday, September 25, he worked only the first 4-1/2
hours of his shift, leaving at 10:32 in the morning. Bohn
testified that the only thing McMahon said was, "I'm
leaving," and just punched out and left. Apparently
Bohn observed none of this himself. He testified he was
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not aware of the circumstances that related to McMa-
hon's leaving, did not know what he was doing that day,
and he did not specifically state that he spoke with
McMahon on that occasion.
On the other hand, McMahon testified, I find without
contradiction, that he left early because he received an
emergency call from home that his wife was very ill and
needed him to look after the children while she went to
a doctor. According to him, he told Foreman Dave
Knoebel and Melva Polkinghorn who was with Knoebel
that he was going to leave and they said for him to go
ahead. According to McMahon, Knoebel said he would
tell Tom Gilmore, the other foreman. Knoebel did not
testify and there is nothing in the record to indicate he
was unavailable. Melva Polkinghorn did testify but she
was not questioned about that occasion.
On this evidence I find that, although McMahon left
early on September 25, he had permission to do go. Ac-
cordingly, Respondent had no basis for disciplinary
action against him for leaving early.
J. McMahon's Threat Against Starr on September 26
On the morning of Tuesday, September 26, as the em-
ployees were punching in, James Bickford heard McMa-
hon say in the presence of a number of other employees
that he was going to kick the shit out of Rick Starr.
Bickford repeated what he had heard to Charles Gilmore
who reported it to Bohn. Bohn then got in touch with
Starr and told him to stay away from McMahon because
some people had said he had threatened Starr, and for
Starr not to start any trouble, that he (Bohn) would talk
to McMahon.
McMahon denied he made such a threat. As between
him and Bickford, I credit Bickford as the more disinter-
ested witness. This resolution is also supported by the
record as a whole which indicated that McMahon was
given to extravagant statements and the further circum-
stance that he and Starr had long been friends. Although
I deem it unlikely that McMahon intended making a seri-
ous threat, I find that Bickford reported his words accu-
rately.
K. McMahon's Discharge on September 26
After instructing Starr to stay away from McMahon,
Bohn had McMahon brought to his office. He also asked
Tom Gilmore to attend. According to Bohn and Gil-
more their purpose was investigatory in that they wanted
to ask him about the reported threat to Starr. They had
made no decision at that point to discharge or even disci-
pline McMahon. However, considering that Gilmore had
been building a case against McMahon for months past,
the possibility of adverse action unquestionably existed.
Although there is dispute as to the details of what oc-
curred in the office, the main outline is clear. When
McMahon arrived Bohn asked him to sit down. Bohn
told him he had been heard to threaten Starr. In the dis-
cussion which followed, McMahon vehemently denied
making threatening statements respecting Starr. Bohn
and Tom Gilmore both testified, and I find, that McMa-
hon in asserting his innocence became loud, using consid-
erable profanity. According to Gilmore, whom I credit,
Bohn also became flustered and cursed. McMahon asked
to face his accusers. Bohn refused that request. Accord-
ing to McMahon and Gilmore, Bohn finally told McMa-
hon that he had "5 minutes, no 3 minutes, no I minute to
pack up and get the hell out." McMahon then left the
plant.
McMahon testified that the first thing Bohn said to
him in the interview was that at the picnic he (Bohn)
had said he was going to get rid of all the troublemakers,
that four or five employees were going to quit if he did
not get rid of McMahon.3 Bohn then referred to the re-
ported threat to Starr and previous rumors of threats re-
garding Tom Gilmore. According to McMahon he ap-
pealed to Gilmore and also asked that Plant Manager
Miller be brought in to corroborate McMahon's assertion
that he did not talk about people behind their backs and
was the sort of person who would confront someone
face to face if he had something to say. He asked that his
accusers be brought in to face him. I deem the variances
between his account and those of Bohn and Gilmore to
be immaterial. Even if Bohn and Gilmore had already
decided to discipline or discharge McMahon, as indicat-
ed by McMahon's account of Bohn's first words, the
result of the interview was the same and the basis for as-
sessing Respondent's motive is the same.
McMahon also denied that in the interview he became
loud and abusive or that he cursed. However, the weight
of the evidence, including evidence that he habitually
was loud and that cursing was a way of life at the plant,
indicates otherwise.
L. The Reasons for McMahon's Discharge
As early as May, Tom Gilmore had begun laying the
foundation for discharging McMahon. He had deliberate-
ly noted for the personnel file his repeated failure to
wear safety glasses. In August he had made a note of a
substantial drop in his quantity of work. Other employ-
ees had complained of his low production and poor
work habits. And there had been the rumors of threats
directed against Tom Gilmore and Starr.4 Finally, when
McMahon was called to the office on September 26 to
discuss the reported threat involving Starr, he became
obnoxious and was preemptorily discharged as an unde-
sirable employee.
The notations in the personnel file are convincing
proof that Respondent had legitimate grounds for termi-
nating McMahon long before the advent of any union
activity and that further grounds developed after union
activity became known to management.
There is, on the other hand, the suspicious timing of
the discharge a little over 2 weeks after the heated argu-
ments at the picnic about the merits of a union. This sus-
picious timing together with the company antiunion
policy and the admitted antiunion attitude of its plant of-
ficials and the verbal unfair labor practices of Bohn after
the company picnic and, as later found herein, on Janu-
ary 2, 1978, would be sufficient basis for inferring an an-
: Bohn denied saying he would get rid of, troublemakers
4 Bohn also contended that on two occasions, September 9 and 25.
McMahon had left the plant without permission As noted earlier herein,
these contentions were erroneous
1268
GENERAL THERMO, INC.
tiunion motive for McMahon's discharge, absent evi-
dence of a legitimate motive. But the record here shows
repeated cause for discharging McMahon both before
and after the Company learned of his union involvement.
Even if Bohn were looking for reasons to get rid of him
as one of the principal union supporters, a finding of un-
lawful discrimination is not warranted in these circum-
stances. K/late Hotel Company, 161 NLRB 1606, 1612
(1966); Rosso and Mastracco, Inc., d/b/a Giant Open Air
Market, 231 NLRB 945 (1977); Fikse Bros., Inc., 236
NLRB 1351 (1978). Accordingly, I find the discharge of
McMahon did not violate Section 8(a)(3) of the Act.
Further, I find the motive was legitimate irrespective of
whether Bohn decided on discharge prior to the Septem-
ber 26 interview or during the interview. It is sufficient
if, as I find, legitimate cause existed when the decision
was made and at the time of discharge.
M. Bohn 's Threat to Melva Polkinghorn in January
1979
Melva Polkinghorn testified credibly, and I find, that
sometime near the end of the year she went on medical
leave, returning to work on January 2, 1979. On her
return Bohn called her to his office and informed her she
was to receive a 30-cent raise in pay, presumably to cor-
rect the disparately low pay she had earlier complained
of. He also told her to quit bad-mouthing the Company.
The only talking by her about the Company revealed in
this record which could possibly be construed as bad-
mouthing was in connection with her union activities
when she was justifying her support for the Union. In
that frame of reference Bohn was advising her to cease
engaging in that type of union activity. Such an admoni-
tion given by a management official at the seat of author-
ity and in connection with the granting of an increase in
pay was an interference with her protected rights and a
violation of Section 8(a)(l) of the Act.
The complaint which was orally amended at the con-
clusion of the hearing to assert the above conduct as a
violation of Section 8(a)(1) alleges that Bohn threatened
an employee with discharge because of her union or pro-
tected concerted activities. In the circumstances the vari-
ance between allegation and proof is of no consequence.
The allegation pointed to the incident claimed to be un-
lawful. The evidence respecting it was already in the
record. I deem the issue fully litigated.
IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The unfair labor practices of Respondent set forth in
section III, above, occurring in connection with the op-
erations described in section I, above, have a close, inti-
mate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
CONCLUSIONS OF LAW
I. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent through its agent Ronald Bohn inter-
fered with, restrained, and coerced employees in the ex-
ercise of rights guaranteed in Section 7 of the Act and
committed unfair labor practices within the meaning of
Section 8(a)(l) of the Act by:
(a) On September 9, 1978, interrogating employees
about their union sympathies and desires and about the
identity of union proponents.
(b) On September 9, 1978, imparting to employees the
impression that employee union activities were under
surveillance by management.
(c) On September 9, 1978, threatening the discharge of
union activists by stating that big shots in a union can be
fired.
(d) On January 2, 1979, instructing a union supporter
not to bad-mouth the Company.
4. By discharging Richard McMahon on September
26, 1978, and thereafter failing to reinstate him, Respond-
ent did not commit unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
5. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices, I recommend that it cease and desist therefrom
and take certain affirmative action to effectuate the poli-
cies of the Act. I also recommend that Respondent be re-
quired to post appropriate notices at its plant in Maquo-
keta, Iowa.
[Recommended Order omitted from publication.]
1269