Hilty Tank Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 979 (N.L.R.B. 1984)

HILTY TANK CORP 979
Hilty Tank Corporation and Teamsters Local Union
No. 776. Cases 4-CA-14084 and 4-CA-14160
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 7 August 1984 Administrative Law Judge
Thomas D. Johnston issued the attached decision.
The Charging Party filed exceptions and a support-
ing brief, the Respondent filed cross-exceptions and
a supporting brief, and the General Counsel filed
an answering brief to the Respondent's cross-excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hilty Tank
Corporation, Carlisle, Pennsylvania, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
1 Both the Charging Party and the Respondent have excepted to some
of the judge's credibility findings The Board's established policy is not to
overrule an administrative law Judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are Incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Or 1951) We have carefully examined the record and
find no basis for reversing the findings
The Respondent contends that the Judge Improperly excluded from
evidence an unsworn out-of-court statement made by union witness Rei-
singer after he testified, which contradicted his testimony at the hearing
The Respondent attempted to authenticate the statement through the
hearsay testimony of the Respondent's president Stranko, and not by Rei-
singer Under these circumstances, we find that the Respondent failed to
provide sufficient proof of the statement's authenticity, and that the judge
properly excluded the statement from evidence
DECISION
STATEMENT OF THE CASE
THOMAS D. JOHNSTON, Administrative Law Judge.
These consolidated cases were heard at Carlisle, Pennsyl-
vania, on April 4 and 5, 1984, pursuant to amended
charges filed by Teamsters Local Union No. 776 (the
Union) in Case 4-CA-14084 on November 28, 1983,'
All dates are in 1983 unless otherwise stated
and in Case 4-CA-14160 on January 18, 1984, 2 and a
consolidated complaint served on February 22, 1984.3
The consolidated complaint, which was amended at
the hearing, alleges that Hilty Tank Corporation (the Re-
spondent) 4 violated Section 8(a)(1) of the National Labor
Relations Act (the Act) by unlawfully threatening to
close its facility and transfer or subcontract work if its
employees selected the Union as their bargaining repre-
sentative, threatening employees with unspecified repris-
als because they selected the Union as their representa-
tive, interrogating an employee about the employee's
support for the Union, promising to give employees a
wage increase if they rejected the Union as their bargain-
ing representative, threatening to discharge its employees
because of their support for the Union, indicating to its
employees that any collective-bargaining agreement
would contain only those terms desired by the Respond-
ent, informing employees that it would be futile for them
to select the Union as their bargaining representative,
telling employees they would not receive wage increases
because they supported the Union, indicating to its em-
ployees it would not negotiate an agreement with the
Union, and prohibiting its employees from talking about
the Union on company property at any time including
their lunch and break periods; and violated Section
8(a)(1) and (3) of the Act by issuing a written warning to
employee Robert Mosier, suspending employee Richard
Zeigler for several days, and discriminatorily discharging
and refusing to reinstate Robert Mosier and employee
Ronald Dick all because these employees supported and
assisted the Union.
The Respondent in its answer dated March 2, 1984,
denies having violated the Act as alleged.
The issues are whether the Respondent violated Sec-
tion 8(a)(1) and (3) of the Act, as alleged, by engaging in
unlawful threats, interrogations, promises, and statements
regarding the Union or its selection by the employees as
their bargaining representative; prohibiting employees
from talking about the Union on company property at
any time; and discriminatorily suspending Robert
Zeigler, issuing a written warning to Robert Mosier, and
discharging and refusing to reinstate Robert Mosier and
Ronald Dick because of their union activities.
On the entire record 5 in the case and from my obser-
vations of the witnesses, and after due consideration of
the briefs filed by the parties, I make the following6
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Pennsylvania corporation with a
plant located at Carlisle, Pennsylvania, is engaged in the
2 The original charges in these cases were tiled on November 14, 1983,
and January 3, 1984, respectively
3 The consolidated complaint itself, which was dated the 22d day in
the year 1984, did not show the month it was issued
4 The name of the Respondent appears as corrected at the hearing
5 The General Counsel's unopposed motion dated May 23, 1984, to
correct the transcnpt is granted
6 Unless otherwise indicated, the findings are based on the pleadings,
admissions, stipulations, and undisputed evidence contained in the record
which I credit
273 NLRB No. 125
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business of the manufacture of carbon steel tanks for use
in the plumbing, heating, and petroleum industries.
During the 12-month period preceding February 22,
1984, the Respondent in the course of its operations
shipped goods and materials valued in excess of $50,000
directly from its Carlisle, Pennsylvania plant to points lo-
cated outside the Commonwealth of Pennsylvania.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act
II. THE LABOR ORGANIZATION INVOLVED
Teamsters Local Union No 776 is a labor organization
within the meaning of Section 2(5) of the Act
III. THE UNFAIR LABOR PRACTICES
A. Background
The Respondent operates a plant located at Carlisle,
Pennsylvania, where it is engaged in the manufacture of
carbon steel tanks for use in the plumbing, heating, and
petroleum industries. Included among its official and su-
pervisory personnel are its president and majority stock-
holder William Stranko, Part-Owner Dale Brougher,
Plant Superintendent Rick Loy, 7 and Secretary-Treasur-
er Yvonne Stranko, who is the wife of President
Stranko.
The Union as described by Union Business Agent
Wayne Shughart began an organizing campaign among
the Respondent's employees in July. On July 29 it filed a
petition with the Board seeking to represent certain of
the Respondent's employees and on October 11, follow-
ing an election held on September 30 which the Union
won by a vote of nine to four, the Union was certified as
the bargaining representative of the Respondent's pro-
duction and maintenance employees, including welders,
rollers, warehousemen, truckdrivers, and leadmen.
B. Unlawful Interrogations, Promises, Threats, and
Statements
Several employees testified concerning conversations
they had with the Respondent's officials and supervisors.
Ronald Dick stated that, about 3 weeks prior to the
election held on September 30, President Stranko talked
to him about the Union. After telling Dick the Union
would be no good for him, Stranko said there would be
raises if the Union did not get in but he could not give
Dick a raise then on account of the Union. Stranko also
asked him twice which way he was going to vote, to
which Dick first replied he would rather not say and the
second time he responded by saying he would make his
own decision the way he felt like he wanted to vote and
thought it was his own decision.
President Stranko, who said he first heard about the
union organizing on July 27, acknowledged having a
conversation with Dick prior to the election but stated
he only informed Dick he needed help and would appre-
ciate Dick's support at voting time. He also reminded
Dick he had helped him when Dick had previously
7 These three individuals are supervisors under the Act
asked for his job back. Stranko denied asking Dick how
he was going to vote or threatening anyone
I credit Dick rather than Stranko and find that about
September 9 President Stranko interrogated Ronald Dick
about which way he was going to vote in a Board-con-
ducted election and promised to give employees raises if
they did not select the Union to represent them Apart
from my observations of the witnesses in crediting Dick
instead of Stranko, I do not find Stranko's testimony
plausible.
Robert Mosier, Ronald Dick, Russell Bender, and
Richard Zeigler all testified that, on September 30 short-
ly after the election was held that day and the votes
were counted showing the Union had won the election,
President Stranko came into the shop, shook hands with
certain employees who had voted, congratulated them,
and said they had won and he had lost Mosier stated
that a few minutes later Stranko told him that Mosier
had not heard the last of this yet. Zeigler, whose testimo-
ny was corroborated by Mosier, Dick, and Bender,
denied Stranko shook his hand and said Stranko re-
marked to him that he knew where Zeigler was coming
from right from the start. Mosier said he also heard
Stranko remark to Dick that after all Stranko had done
for Dick that he had done this to him While Dick did
not testify about such a remark he stated Stranko said to
them something like "your day's coming" or something
like that. Bender stated that the same day after the elec-
tion as he was talking to Dick about not having a way to
get home and was getting his check from Stranko,
Stranko told Bender not to tell Stranko his problems and
remarked Bender's troubles had not started yet
Dick and Bender described Stranko as being mad or
upset on this occasion when he spoke to the employees.
President Stranko, who admitted being disappointed
on election day, acknowledged shaking hands with the
employees after the election and congratulating them and
telling them they had won. Although he denied saying
anything different to Mosier, he acknowledged remark-
ing to Zeigler that he knew where Zeigler was coming
from all along. Stranko at the hearing explained he knew
Zeigler had belonged to a union prior to coming to work
for the Respondent and he intended by this remark to
show he knew Zeigler was a union supporter.
Based on the testimony of Mosier and Bender, which I
credit, that immediately after the Union won the election
Stranko informed Mosier that he had not heard the last
of this yet and told Bender that Bender's troubles had
not started yet, I find that on September 30 President
Stranko threatened Robert Mosier and Russell Bender
with unspecified reprisals because the employees had se-
lected the Union as their bargaining representative. With
respect to Dick's testimony about Stranko making a
statement about "your day's coming" or something like
it, he was too uncertain exactly what Stranko said to
allow me to make a finding.
Following the Union's certification the first negotia-
tion meeting was held on October 27. Present for the
Union were Business Agent Shughart, Allan Klose,
Robert Mosier, and Clarence Shaffer. President Stranko
represented the Respondent. Klose testified that at this
HILTY TANK CORP 981
meeting they went over a contract proposal presented by
the Union and during the meeting Stranko said he would
hire and fire anybody he wanted to and neither the
Union nor anybody else was not going to tell him what
to do Stranko also said there would not be anything in
the contract he did not want there and nobody was
going to run his business but himself. Business Agent
Shughart, who corroborated Klose's testimony about
Stranko saying he would fire anyone he wanted to, also
stated Stranko commented he did not like unions and the
Teamsters was not going to run his business. Mosier also
stated that at this meeting Stranko said he would fire
whom he wanted, when he wanted, and they were not
going to tell him what to do
President Stranko did not deny making such state-
ments at this meeting. While I credit the undemed testi-
mony of Klose, Shughart, and Mosier concerning the
statements made by Stranko, I do not find such state-
ments constitute threats by President Stranko to dis-
charge employees because of their support for the Union
as alleged. Rather, such statements about discharging
employees, unrelated to the union activities of employees
and uttered in the context of bargaining, reflect only bar-
gaining positions.
According to Shughart at each additional negotiation
meeting, including three held in November and three
held in January 1984, President Stranko repeated his
statement that he did not like unions and a union was not
going to run his business and he would discharge anyone
he wanted to. 8 Klose, who corroborated Shughart's testi-
mony, also said that at these meetings when the Union
brought up changing something Stranko would tell them
he did not want it in the contract so it was not going to
be there.
While President Stranko did not deny making such
statements, his wife, Secretary-Treasurer Stranko, who
attended three negotiation meetings in January 1984,
denied he Said anything about unions or not liking unions
at those meetings. She also denied remembering whether
Stranko said he could fire anybody for any reason or the
Union was not going to tell him whom he could hire and
fire, but stated he did say it was his business and he
would run it the way he wanted. I credit Shughart and
Klose and find such statements made by Stranko at the
first negotiation meeting were repeated at subsequent ne-
gotiation meetings.
Prior to the election the Respondent held three meet-
ings of all its employees. President Stranko placed these
meetings as occurring on July 29, the last week in
August, and on September 29 which was the day before
the election. Stranko spoke at the first meeting and both
Stranko and Part-Owner Brougher, who was present at
the last two meetings, spoke at those meetings. Several
employees testified concerning certain statements made
at these meetings by Stranko and Brougher.
Robert Mosier said that during the first meeting held
on July 29 Stranko told them he had no use for the
Union and mentioned at the present time he was doing
the best of his ability about the employees' wages and
8 These statements made at those meetings were not alleged as viola-
tions, but only offered as evidence of Respondent's union animus
benefits. Allan Klose stated Stranko said they did not
need a third party, referring to the Union, to settle dif-
ferences between employees and the Respondent and if
they had any grievances to call him. Ronald Dick testi-
fied Stranko informed them the Union was not any good
and was not going to help them. Dick also stated
Stranko said there definitely would not be any raises be-
cause of this Union
Robert Mosier, Allan Klose, Ronald Dick, Russell
Bender, and Richard Zeigler testified Stranko at the
meeting informed them if the Union was voted in he
would shut the doors, close the shop, take the tanks out
of the shop, ship the trucks back to Brougher, or con-
tract out and there would be no jobs or everybody
would be out of a job.
President Stranko's version of what he said about clos-
ing the plant was if the Union was voted in and put the
Respondent in an uncompetitive position the Respondent
might be forced to close the plant down. Stranko denied
raises were mentioned.
Based on the testimony of Robert Mosier, Allan Klose,
Ronald Dick, Russell Bender, and Richard Zeigler,
which I credit instead of that of Stranko, which I have
previously discredited, I find that on July 29 President
Stranko threatened employees with closing the plant and
transferring work if the employees selected the Union to
represent them
Robert Mosier testified that during the second meeting
held in late August Part-Owner Brougher mentioned the
Union could not do anything for them and he could not
understand why they wanted one. Allan Klose stated
Brougher said they did not need a union there and any
differences they had could be settled between the em-
ployees and Stranko and himself. Russell Bender said
Brougher told them the Union really would not help
them and a third party could not settle their problems,
and the Respondent would rather the employees wait an-
other year and give the Company a chance to make
things right and then they could join the Union if things
were not made right for them Richard Zeigler stated
Brougher also said they did not need a union and the
Union could not do anything for them and they did not
need a third party involved.
Both Robert Mosier and Richard Zeigler testified
Brougher told the employees if the Union came in he
would take the road joints 8 out and take them back to
where they came from. Allan Klose stated Brougher said
he could take them out and take them back to where
they came from, and Russell Bender testified Brougher
said they had brought the road joints up from one of his
companies and if the Union got in there could be a good
chance they would discontinue building. While Ronald
Dick first stated Brougher told them he would do away
with the road joints for voting for the Union, under
cross-examination Dick was not sure whether Brougher
or Stranko said it."
9 The road or expansion joints as described by Mosier are used in high-
ways between concrete sections to allow for expansion in hot weather
and contraction in cold weather
" Dick in an affidavit given to a Board agent stated that at one meet-
ing Stranko had said he would do away with the road joints if they voted
for the Union
982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Bender, Klose, Mosier, and Dick if the
road joint work was moved, employees would be laid off
or have less work or the plant would be closed.
Mosier also testified that in the meeting Brougher told
them if they voted in the Union the most that could
happen was the Respondent would have to sit down for
two or three meetings and the employees would go out
on strike and the Respondent would hire somebody to
replace them.
Allan Klose testified that at the second or third meet-
ing Stranko told them they could not get a raise then.
However, Stranko mentioned he was just starting out of
the red into the black and said that until the time they
started talking about bringing in the Union they were
going to get a raise," but since the Union was in he
could not give it to them because it might be considered
a bribe before the election. Richard Zeigler stated
Brougher told them at this meeting the Respondent had
received a letter from the NLRB and it could not give
them a raise because it would be considered a bribe.
Robert Mosier did not recall whether Brougher made
any comment about wages.
Allan Klose testified that Stranko also said in negotiat-
ing with the Union for contracts there would be nothing
in the contract except what Stranko wanted there and
there was no one who knew how to run the Company
except him.
Richard Zeigler also stated that at the last meeting,
which was on September 29, Stranko said he had to ne-
gotiate a contract but the only thing that would be in it
was what the Company wanted in there. Russell Bender
also stated that at the meeting the Respondent told the
employees it wanted them to give the Respondent an-
other chance before the vote the next day and see if it
could make things right.
Both Part-Owner Brougher and President Stranko ex-
plained at the hearing that what Brougher had said about
the road joints" in the meeting was that he mentioned
the fact that the road joints during a work stoppage due
to the Union would have to be subcontracted out be-
cause of their commitment to the highway contractors.
According to them, their commitment was under no cir-
cumstances would they hold up contractors' jobs, but
they would be able to complete deliveries when needed,
and their work was but a very small part of an overall
contract.
Brougher and Stranko both denied anything was said
to the employees in the meetings about giving them a
raise. Rather, they stated when Allan Klose had asked
them about a raise they informed the employees they
could not discuss it.
Brougher, on being asked at the heanng what he had
told the employees in the meetings about the process of
negotiations or collective bargaining with the Union,
stated at the first meeting he attended that as far as nego-
tiating he said they would not negotiate. However, at the
last meeting he told them if they voted for the Union the
" Klose acknowledged that prior to their contacting the Union
Stranko had not mentioned a raise
12 Stranko stated the Respondent has been manufacturing the road
Joints since 1982 and the work was contracted to the Respondent by
Brougher
Company would sit down and discuss it with the Union.
Stranko also stated Brougher said it was a give-and-take
process with an exchange of ideas working towards a
contract, but indicated no one was forced to agree to
anything and the Company would bargain in good faith.
Both Brougher and Stranko denied Brougher said they
would only have two or three meetings and the contract
would just say whatever he wanted it to say.
I credit the testimony of Robert Moiser, Richard
Zeigler, Allan Klose, Ronald Dick, and Russell Bender,
instead of that of Brougher and Stranko, concerning
these meetings, and find that in late August Part-Owner
Brougher threatened the employees with transferring or
subcontracting the road joint work if they selected the
Union as their bargaining representative; Brougher told
employees the Respondent could not give them a raise
indicating it was because of the Union;" Brougher by
his own admission told employees he would not negoti-
ate with the Union, and President Stranko informed em-
ployees any collective-bargaining agreement negotiated
with the Union would contain nothing except what the
Respondent wanted, thereby indicating to employees it
would be futile for them to select the Union as their bar-
gaining representative. Besides my observations of the
witnesses in discrediting Brougher, his explanation of
what he told the employees about subcontracting the
road joint work is not persuasive.
C Prohibiting the Employees from Discussing the
Union on Respondent's Property
Richard Zeigler, Allan Klose, and Russell Bender tes-
tified that, about the latter part of August, Plant Superin-
tendent Loy instructed them they were not to talk about
the Union on company time or property. They all denied
the Respondent had any rule at the time prohibiting em-
ployees from discussing nonwork subjects on worktime
and stated they and other employees had previously dis-
cussed such subjects on worktime every day According
to Bender, Zeigler, and Klose, supervisory personnel, in-
cluding Plant Superintendent Loy, were aware of these
discussions and had talked to employees about things
other than work, including sports, and had told jokes on
working time.
Superintendent Loy under cross-examination acknowl-
edged that prior to the election he told employees they
were not to campaign for the Union while on company-
paid time or on the premises Loy at the hearing ex-
plained he did so on advice of a labor consultant em-
ployed by the Respondent. Loy further acknowleged he
had had discussions with employees at work including
subjects like sports and hunting. While Loy stated there
was no rule against such discussions as long as they did
not disrupt production, no evidence was proffered to
show that at the time Zeigler, Klose, and Bender were
given their instructions production was being interfered
with and the instructions themselves made no reference
to the interference with production.
13 According to Klose, President Stranko had said the employees were
going to get a raise until they started talking about bringing in the Union.
HILTY TANK CORP 983
Based on the testimony of Zeigler, Klose, and Bender,
which I credit, and Loy's own admissions, I find that
about the latter part of August Plant Superintendent Loy
prohibited employees Richard Zeigler, Allan Klose, and
Russell Bender from talking about the Union on compa-
ny property at any time.
D. The Discharge of Ronald Deck
Ronald Dick was employed by the Respondent in De-
cember 1980 and worked about a year until he quit. He
was rehired in May and worked until November 17."
His job was welding tanks and he also built road joints.
Dick's union activities included signing a union author-
ization card and attending union meetings.
According to Dick, for about a week prior to Novem-
ber 17 a rotator button on the equipment he was using
was broken with the wires exposed. Despite his com-
plaints to three different foremen over a period of sever-
al days the button was not fixed.
The last day Dick worked for the Respondent was
November 17. That morning Dick, who was working in
the plant, heard President Stranko hollering and scream-
ing at Russell Bender and Richard Zeigler, who were
about 20 feet away. Dick walked around the tank he was
working on and listened; after he returned to his tank
Stranko came over to where he was and using profanity
told him it was none of his business if the buttons
worked or not. After Dick replied Stranko was right,
Stranko told Dick if he did not like it he could quit.
When Dick made no response Stranko repeated his state-
ment, whereupon Dick told Stranko if Stranko wanted
him to quit he could fire him. Stranko told Dick he was
not firing him but then started hollering and screaming at
Dick, cursing him, and told him if he did not like it he
wanted him to leave—the third time Stranko told him to
leave. Dick then told Stranko he was going to leave, but
would see what he could have done about it. Stranko,
still hollering and screaming, kept asking Dick, "What'd
you say?" as Dick went to the timeclock, punched out,
and left.
Both Russell Bender and Richard Zeigler, who esti-
mated they were about 15 to 20 feet away, stated they
saw Stranko talking to Dick and, although they did not
hear everything Stranko, who was talking in a loud
voice, said, they heard Stranko curse Dick and tell him
to get out of there, whereupon Dick then punched out
and left. According to Bender and Zeigler, prior to
Stranko's talking to Dick, Stranko had come over to
where they were working and had yelled at and cursed
them and said if they had something to bitch about they
were not to do it behind his back but to come to him.
Zeigler also said Stranko told them if they could not
come to him they were to leave.
Zeigler stated that just before this incident occurred he
and Allan Klose had been in the lunchroom talking
about an electrical box with no cover at the rotator and
how unsafe it was Zeigler did not know whether Dick
was involved in that discussion.
14 Dick was uncertain of the date arid this is the date given by the
Respondent's witnesses
President Stranko denied discharging Dick on Novem-
ber 17 or that his treatment of Dick had anything to do
with Dick's union activity. His explanation of the inci-
dent was his wife had reported to him that morning she
had overheard Bender, Zeigler, and Dick in the lunch-
room using profanity against the Respondent and the fact
the rotator button was broken and he went and spoke to
those three employees because of his concern that sales-
people and customers could have overheard them talking
in the lunchroom. Stranko stated he confronted Bender
and then Zeigler, who were at the road joint tables,
about the report he had received and asked them why
they did not come to him instead of cursing the Compa-
ny for something they did not make the Company aware
of. When Zeigler said he did not have anything to say
Stranko, using profanity, told him not to be gutless and if
he had anything to say to say it.
Stranko testified he then went over to the rotator
where Dick was and told Dick he understood Dick had
a problem or complaint and had been in the lunchroom
cursing the Company, saying that it did not fix anything
and the rotator button was not working. When Dick re-
plied he did not have anything to say and just wanted it
fixed, Stranko told Dick, using profanity, not to be gut-
less and if Dick had anything to say to say it and to tell
them so they could take care of it and not to just com-
plain in front of the men and cause a lot of problems
with that sort of thing Dick then accused Stranko of
telling him to leave and of firing him, both of which
Stranko denied. However, Dick proceeded towards the
timeclock while repeating those accusations, which
Stranko again denied. Dick then punched out and left.
Stranko estimated Bender and Zeigler were about 80
feet from Dick and denied because of the normal noise in
the plant that day they could hear what he said to Dick.
While Stranko acknowledged he was upset and his voice
was up when he talked to Dick, he denied he was yell-
ing.
Raymond Neal, who was a crew leader or assistant
crew leader for the Respondent, stated that on Novem-
ber 17 he was in the plant standing by the 3.8 amp rota-
tor and he observed President Stranko talking in a loud
conversation to both Bender and Zeigler and then with
Dick. Neal was unable to estimate how far he was from
them, but stated he was closer to Bender and Zeigler
than to Dick. While Neal denied being able to hear what
was being said because of the noise, he first said he may
have heard a word or two in Stranko's conversation
with Bender and Zeigler but then stated he did not re-
member hearing any words. Dick denied Neal was in the
area when he talked to Stranko that day.
While Plant Superintendent Loy testified that between
where Bender and Zeigler worked from Dick a person
might be able to pick up a conversation if those persons
were yelling, he claimed there was no way to identify
what was being said. However, Loy acknowledged he
was not present on that occasion and the noise level in
the plant fluctuated.
Based on the testimony of Dick, Bender, and Zeigler,
which I credit rather than that of Stranko, which I have
previously discredited, and Neal, which testimony was
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contradictory, I find that on November 17 President
Stranko instructed Dick to leave, thereby discharging
him.
Later that same day President Stranko called Ronald
Dick's home and talked to his wife, Gloria Dick. Gloria
Dick testified that on that occasion Stranko asked her
whether her husband was there and told her he and
Ronald Dick had had words and Dick had walked out.
After Gloria Dick informed Stranko her husband, who
she thought was at work, was not home, Stranko told
her that he could come down and ask for a job but was
supposed to call back between 3 and 3:30 p.m if he
wanted his job back, and if Stranko did not hear from
him between 3 and 3:30 p.m. he would replace him the
next morning. Gloria Dick also testified during the con-
versation Stranko told her he had taken pity on her hus-
band and had given him a job, but in the meantime they
were working to get the Union and Ronald Dick was
supposed to promise him he was not going to vote for
the Union.
President Stranko stated on that occasion he told
Gloria Dick that he and her husband had had a disagree-
ment and Dick had walked off the job, but if her hus-
band returned home by 5 p.m. for him to call Stranko
and his job was there. Stranko stated Gloria Dick then
mentioned her husband should never have gone against
Stranko in the Union, whereupon he denied that had
anything to do with it and stated he did not want to dis-
cuss it.
Secretary-Treasurer Stranko, who said she overheard
her husband talking to Gloria Dick on the telephone that
day but could not hear what Dick said, corroborated her
husband's testimony concerning what he said he told
Gloria Dick.
I credit Stranko's testimony, which was corroborated
by his wife, instead of Gloria Dick's, which version I do
not find plausible concerning their conversation.
Ronald Dick stated on returning home that day about
4:30 p.m. his wife gave him Stranko's message. However,
he did not call because it was too late since he had been
working until 3:30 p.m. and his wife did not say anything
to him about calling before 5 p.m.
Later that week 15 Ronald Dick called President
Stranko and asked for his job back; however, Stranko re-
fused to rehire him. During the conversation Dick men-
tioned he had been to the NLRB.
Stranko at the hearing said the reason he did not
rehire Dick on that occasion was when Dick left his em-
ployment the first time he had worked there he had im-
properly accused Stranko of firing him" when he quit
his job instead because he did not have a way to get to
work, and because he had already taken steps to replace
Dick after he left on November 17 although he had not
actually hired anyone to replace him.
15 Dick placed this conversation as occurring 2 days later, which was
November 19, while Stranko stated it occurred on Fnday, which would
have been November 18
" Dick denied accusing Stranko of firing him on that occasion, while
Plant Superintendent Loy corroborated Stranko's testimony about the in-
cident
E. The Suspension of Richard Zeigler
Richard Zeigler has been employed by the Respondent
for over 2 years and works as a welder. His union activi-
ties include signing a union authorization card and at-
tending union meetings. He along with Allan Klose ini-
tially contacted the Union about organizing the Respond-
ent's employees.
Zeigler credibly stated that about the middle of
August Plant Superintendent Loy asked him whether
there was anything they could do to keep the Union
from coming there. He informed Loy that there was not
at that point and he thought it was too late. Loy did not
deny such conversation occurred.
Zeigler stated that on Monday, December 19, he did
not report to work because of a severe headache caused
by medication he was taking for tuberculosis. He in-
structed his nephew William Reisinger, who worked for
the Respondent and with whom he rode to work, to
report him as being off work for sickness.
Reisinger confirmed Zeigler had called him at home
that morning and said he was sick and would not be
going to work. Reisinger stated that on his arrival at
work he told Plant Superintendent Loy that Zeigler was
sick and would not be in to work. When Loy asked what
was the matter he told him he did not know.
Loy acknowledged Reisinger told him that morning
Zeigler would not be in to work that day. However, he
claimed he asked Reisinger both the reason and then
whether Zeigler was sick, with Reisinger answering both
times he did not know. I credit Reisinger, who I find
was a more credible witness than Loy. Besides my obser-
vations of the witnesses in crediting Reisinger rather
than Loy, Loy's testimony was contradictory.
Zeigler stated that about 11:30 a.m. that same morning
he drove over to his brother's farm nearby and while he
was crossing a fence to speak to his brother, who was
outside, a stick from a tree struck him in his eye. Zeigler
stated that about 5:30 a.m. the next morning he had to go
to the hospital as a result of his eye injury and he did not
go to work that day but had his sister notify Loy at
home he would be off from work. Reisinger also testified
on November 20 while he was getting ready to go to
work Zeigler's sister notified Reisinger's mother that
Zeigler was not going to work that day and he told Loy
the same morning Zeigler would not be there.
Loy acknowledged that Zeigler's sister called him at
home that morning and informed him Zeigler had been
struck in the eye with a stick and he would not be at
work that day
Zeigler testified on the afternoon of December 20 Loy
called and informed him he had been given a 3-day sus-
pension for not properly reporting being off from work
on December 19 and said he should have reported being
off from work personally. Loy further stated Zeigler also
had an indefinite suspension for not reporting being off
from work properly on Tuesday.
Loy, who said he decided on December 19 to suspend
Zeigler for 3 days and on December 20 to make the sus-
pension indefinite because Zeigler's sister had called in
instead of Zeigler, acknowledged notifying Zeigler on
December 20 he had placed him on an indefinite suspen-
HILTY TANK CORP 985
sion. He said he told Zeigler it was for improperly re-
porting being off from work, which he explained meant
Zeigler could have called him personally and he had
given him no excuse for being off. Loy did not recall
asking Zeigler why he had been off from work or for an
excuse.
Loy sent Zeigler a letter dated December 19 informing
him he had failed to call and report his being off from
work and had violated company policy by giving a
fellow employee a message to report him off from work.
It indicated Zeigler was suspended without pay from
December 20 through December 22 for his failure to
report being off from work undei company procedure
and threatened termination for future violations.
Zeigler, Reisinger, Russell Bender, and Allan Klose all
testified other persons had called in for them before and
reported they would be off from work for sickness with-
out any discipline being taken against them. They all
denied being told they had to call personally when they
were going to be off from work for sickness, and, as
stated by Bender and Klose, they were only told that the
Respondent be notified before starting time. Both Zeigler
and Reisinger stated on several prior occasions Reisinger
had reported Zeigler would be off from work for sick-
ness without incident
The Respondent's policy on reporting being off from
work as described by Loy is the employee himself is to
notify Loy's office within a half-hour of the start of the
workday if he is going to be off from work and give an
excuse why he is going to be off. Loy admitted, howev-
er, in the past he had allowed persons other than the em-
ployee himself to call in for an employee. Under cross-
examination, Loy admitted he had permitted Reisinger to
report Zeigler off sick before and it was okay for an em-
ployee to report another employee off sick.
Zeigler testified later that week he went to the Re-
spondent to find out how long he was being suspended;
however, Loy ordered him off the Respondent's proper-
ty. When he returned on Friday, December 23, to get his
check, President Stranko told him he could come back
to work on Tuesday, which would have been December
27 On December 28 afteP Zeiglei returned to work, he
was given a written confirmation of his suspension by
Loy, who signed it, which provided as follows:
Due to your violation of Company Policy on De-
cember 19-20, 1983, you were suspended without
pay for four days. You are hereby returned to work
effective Tuesday, December 27, 1983 with the un-
derstanding that this is your last chance warning.
Any future violation of Company policy will result
in your termination.
Loy, who said he discussed the matter with President
Stranko, who had accused Zeigle r of being a union sup-
porter, but made the decision himself, gave several rea-
sons for suspending Zeigler. Although he thought
Zeigler had voted for the Union, he denied Zeigler's
union activities had anything to do with it. According to
Loy, a few days prior to December 19 Zeigler had asked
for permission to be off from work on December 19 to
go deer huntmg 17 and he had denied Zeigler's request.
He denied on December 19 he was given any reason for
Zeigler being off from work. He said he called Zeigler's
home after 7 but before 8 that morning and no one an-
swered, and he believed Zeigler was not sick but had
gone deer hunting. Besides believing Zeigler had gone
deer hunting and no excuses were given to him, Loy,
who said the biggest factor was Zeigler had broken com-
pany policy, also stated he relied on the fact Zeigler had
not called him personally to inform him about being off
from work and he also considered Zeigler's work record.
Zeigler's work record contains various written nota-
tions reflecting on June 19, 1981, he failed to follow his
shop drawings, on November 11, 1981, he failed to
follow instructions properly; on December 23, 1981, he
did not show up for work for 1 day after his request to
go bear hunting had been denied, for which he was sus-
pended for 1 day, and the record reflects his wife had
called in but he did not have a doctor's excuse and it
was common knowledge he intended not to come in
thereby disregarding instructions; 18 on April 8, 1982, he
mocked his supervisor with hand gestures, for which he
was warned, on May 25, 1982, he performed improper
work and displayed an improper attitude, for which he
was warned; on March 18, he failed to properly test a
tank for which he was told future negligence would
result in suspended time off without pay; on March 29 he
performed improper welding with a last warning that
future negligence would result in disciplinary action; on
May 31 he was given a 2-day suspension for improper
welding and a warning of future suspension and then ter-
mination; on August 18 he was given a 3-day supension
for gross negligence that day for what appears was im-
proper welding and damage to a tank with a warning of
termination on the next offense; on October 7 he did im-
proper testing of a tank, for which he was warned that
future negligence may result in discipline or possible ter-
mination; and on December 15 he was verbally warned
for not wearing ear protection.
F. The Written Warning to and the Discharge of
Robert Mosier
Robert Mosier was employed by the Respondent from
March 1982 until October 31, 1983. His duties primarily
consisted of driving trucks and on occasions he worked
in the plant.
Mosier's union activities included attending union
meetings, signing a union authorization card, discussing
the Union with other employees, wearing a union insig-
nia' 9 on his hat at work, and participating in the negotia-
tion meeting held on October 27
Mosier was given a written warning in a letter from
President Stranko dated October 24 for five violations of
the work rule policy occurring on October 20 for failing
to follow tnp ticket instructions and not calling in after
" Zeigler did not recall making such a request
18 Zeigler did not recall an incident where he had gone hunting when
his wife had called him in sick and Plant Superintendent Loy acknowl-
edged his own knowledge about the incident was based on what former
Plant Superintendent Miller had told him
19 Mosier was the only employee who wore a union insignia at work
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the last stop; on September 14 for a complaint on his
driving habits; on July 7 for housekeeping on the tractor
he drove; on May 31 for insubordination; and on May 19
for sideswiping two vehicles with an oversize load on
the trailer, including one in Pennsylvania and one in
Ohio. This letter further stated that it was confirming
their meeting on October 21, that Stranko had previously
spoken to Mosier about the serious nature of each of-
fense but the violations were continuing, and that this
was his final warning and the next offense would mean
disciplinary action and after that termination.
President Stranko testified he had met with Mosier on
October 21 and gone over the various incidents reported
in the letter and Mosier's attitude towards them, and he
had mentioned things were mounting and they would
have to get them straightened out. According to
Stranko, Mosier's attitude in the meeting was the inci-
dents were nothing and Mosier said Stranko had men-
tioned them before. Stranko stated during the meeting
while he was talking to Mosier, Mosier started getting up
to leave, whereupon he informed Mosier he was not fin-
ished with him and reminded Mosier he had told him in
the past not to leave until his supervisor told him to go.
Mosier then sat down until the conversation was over.
Stranko stated he sent the warning letter to Mosier
after the meeting because Mosier's violations were con-
tinuing and he wanted Mosier to have the confirmation
so he could not forget they had talked about those of-
fenses which he described as serious.
Mosier acknowledged meeting with Stranko and being
verbally warned prior to receiving the warning letter.
According to Mosier, Stranko informed him on that oc-
casion he had black marks against him and they would
write them off, but said any further black marks would
come in disciplinary action and anything after that
would be a discharge.
Mosier denied on that occasion Stranko told him he
should not walk away when Stranko was talking to him.
Mosier also stated after Stranko had finished going over
the incidents Stranko pointed to the union insignia on his
hat and said that did not scare him one bit.
Stranko explained the May 19 incident involved Mo-
sier's sideswiping another vehicle knocking the mirror
off without stopping, which the Respondent had to pay
to have repaired, and while on the same trip Mosier had
another accident. Mosier acknowledged having an acci-
dent on that trip knocking a mirror off of another tractor
and another accident involving passing a dump truck at
which time a door jam was bent. While Mosier denied
Stranko warned him on that occasion but only said he
would check into it, Stranko said he told Mosier these
were serious things and warned him to be very careful.
On the May 31 incident Stranko testified on Mosier's
return from a trip which Stranko estimated took 4 hours
longer than necessary he asked Mosier twice what had
happened; however, each time Mosier did not answer.
On telling Mosier he was 4 hours late and asking wheth-
er he had a problem Mosier's response was he did not
have to talk to Stranko. He then told Mosier he was his
employer and he was entitled to an answer. When
Mosier continued to ignore him he informed Mosier he
was fired. Later that day Mosier, who had returned to
get his check, apologized and asked for his job back.
Stranko rehired Mosier but informed him he would not
tolerate that kind of conduct and said when he or any
supervisor talked to Mosier for Mosier to give them a
civil answer; they were entitled to it because Mosier
worked for them.
Mosier acknowledged being fired by Stranko and re-
hired that same day after Stranko had questioned him
about where he had been on his returning from a trip
and he did not answer but instead proceeded with his pa-
perwork. Stranko also told him when he was talking to
him for him not to walk away Mosier could not recall if
Stranko threatened him with discharge if a similar inci-
dent occurred.
On the July 7 incident Stranko stated he discovered
the tractor Mosier was operating was filthy inside and
contained empty soda cans, bottles, paper, and rags and
appeared to have coffee spilled over the dashboard, at
which time he talked to Mosier about his responsibility
to keep it clean and said he would give him until
Monday to get it squared away. When Mosier appeared
to get upset during the conversation Stranko told him his
attitude was very poor. Mosier acknowledged Stranko
had talked to him about keeping his truck clean on one
occasion after something had been spilled inside the
truck and he had put towels down so it would not
spread. While Mosier denied Stranko gave him a verbal
warning, under cross-examination he tacitly admitted he
was reprimanded on that occasion.
On the September 14 incident Stranko testified a man
called and complained about Mosier's driving habits,
whereupon Stranko requested the man to put it in writ-
. ing. A month or two later Stranko said he received such
a letter. Mosier acknowledged on one occasion Plant Su-
perintendent Loy had talked to him about a man being
upset and asked what had happened, at which time
Mosier explained he had blinked his lights to pass a vehi-
cle and evidently the man in the vehicle thought he was
closer than he was. Stranko, who was present, then told
Mosier he had to be careful and they could not afford
accidents. Mosier denied being told he was being
warned.
Stranko described the October 20 incident as one
where Mosier made a trip to deliver and pick up some
bars as noted on his tnp ticket. Mosier delivered the bar
but returned to the plant without picking up the bar as
required or calling into the plant after he had delivered
the last bar, which was the standard procedure. On con-
fronting Mosier he said he had not read the trip ticket
and they had to send him back to pick up the bar.
Mosier acknowledged Stranko talked to him about not
getting the bar, but denied he warned him.
All of these incidents except for the September 14
complaint about Mosier's driving habits are recorded on
Mosier's work record. Mosier denied being told any of
these incidents were verbal warnings or were going on
his record.
I credit Stranko's testimony concerning his conversa-
tions with Mosier about the warnings given to Mosier.
Apart from my observations of the witnesses in not cred-
iting Mosier about the warnings, his testimony about
HILTY TANK CORP. 987
them was not persuasive and on other occasions was
contradictory.
Mosier was discharged on Monday, October 31. On
that date, Mosier, who was not scheduled to work, went
to the plant in the morning to turn in his trip tickets and
fuel receipts for a trip he had made the previous Friday.
Mosier stated at the time he was on his way to drop his
son off to catch the school bus and estimated he arrived
at the plant about 7:55 a.m. Mosier stated that on going
to the office and handing Plant Superintendent Loy his
papers Loy told him they had had difficulty starting the
tractor Mosier had been driving and said when Mosier
was stopped at places such as to get unloaded he wanted
him to check his batteries once in a while. Mosier ac-
knowledged he made no comment but said he shook his
head affirmatively. Mosier had been standing by Loy's
desk, and after shaking his head he turned, paused a
couple of seconds, and, when no other remarks were
made, he left the office and proceeded outside. When he
was about halfway across the yard President Stranko,
who had come into the office during the conversation
and had been sitting at a desk about 12 feet away, came
to the door and called him. Mosier turned and walked
back towards Stranko. Stranko then said, "When some-
body's talking to you, you do not walk out." On asking
Stranko what else he wanted, Stranko repeated his state-
ment. Mosier then remarked, "Well, what else is there?"
whereupon Stranko informed Mosier he was fired.
According to Loy, the reason he talked to Mosier that
day was because the day before when he went to the
plant to prepare for Monday's deliveries the tractor as-
signed to Mosier would not start and he discovered two
of the battery water levels were dry, 2 ° which resulted in
having to assign another tractor and paying two employ-
ees overtime pay on Monday to come in early and jump
start the tractor with two other vehicles. On informing
Stranko that Monday morning about it Stranko instruct-
ed him to talk to Mosier.
Loy's version of the conversation, which he placed as
occurring about 8:15 a.m., was he explained about find-
ing two of the battery levels dry and felt Mosier had not
checked them for a long time, whereupon Mosier just
shook his head but did not say anything. Loy then went
on to explain it was Mosier's responsibility to check the
batteries and if there were any problems to let Loy know
and they would be replaced. Loy stated while he was
still talking to Mosier about opportunities Mosier would
have to check the batteries while waiting at jobsites and
to add water, if they were low. Mosier, who was stand-
ing beside his desk, turned away from him and walked
away from his desk and out the door. Loy denied the
conversation was finished or telling Mosier he was
through. He stated Mosier did not say anything but
nodded his head up and down practically the whole
time. Loy stated when Mosier went out the door Stranko
looked up from his desk where he was sitting and asked
where Mosier was, whereupon he informed Stranko that
Mosier had walked out or had walked out on him.
20 While Mosier denied he had let the batteries run down no testimony
was proffered to show when he last checked them.
Under cross-examination, Loy acknowledged he had
testified at an unemployment hearing Mosier opened the
door as he was concluding his remarks and stepped out
and closed the door, and in a memorandum Loy had
made of the conversation he had also stated as he was
concluding his remarks Mosier opened the door and
left.21
President Stranko, who stated he was in the office sit-
ting at the secretary's desk with his head down using a
calculator but listening to the conversation, corroborated
Loy's testimony regarding what was said during the con-
versation which Stranko could tell was not fmished and
that Loy had said Mosier had walked out on him.
Stranko testified he then went to the door and called
to Mosier, who was in the yard, to come back and after
Mosier came back part of the way Mosier asked what he
wanted. Stranko stated when he told Mosier he had
walked out on his supervisor in the middle of a conver-
sation Mosier again asked what he wanted. While he was
telling Mosier it was not what he wanted but it was what
Mosier did by walking out in the middle of the conversa-
tion, Mosier interrupted and again asked Stranko what
he wanted. Stranko then told Mosier he was fired.
Loy, who stated he overheard the conversation, cor-
roborated Stranko's testimony.
I credit the testimony of Stranko and Loy, rather than
Mosier, concerning their conversations that day leading
up to the discharge and the discharge itself.
Following his discharge Mosier went into the plant to
get a number from Allan Klose, but was told by Loy,
acting on Stranko's instructions, and then by Stranko, to
leave the plant which he did. Mosier has not been em-
ployed by the Respondent since his discharge.
Although Mosier did not punch in on October 31 and
denied punching in or being paid on similar occasions in
the past, the testimony of Secretary-Treasurer Stranko,
who stated she paid Mosier for that day on instructions
from President Stranko, and the Respondent's records re-
flect that Mosier was paid for coming in that morning
for about 15 minutes and turning in his papers.
Stranko, in a letter dated November 1 to Mosier con-
firming his discharge, reminded him of the October 24
letter outlining the five previous violations of the work
rule policy and warning, and stated Mosier had deliber-
ately walked away from his immediate supervisor while
he was speaking to him about the batteries and he was
therefore terminated in accordance with article VI of the
Company's work rule policy.
Stranko at the hearing said his reasons for discharging
Mosier were his insubordination on October 31 and the
prior violations he had talked to him about including his
discharge for a similar incident on May 31. Additionally,
Stranko credibly testified that about a week before the
October 31 incident he was on the telephone trying to
get some information from a customer and he instructed
Mosier, who was standing there, to wait. However,
Mosier left without waiting and went home. While
Mosier later told Stranko he left after Loy had nodded
21 Loy at the hearing explained what he meant was he was concluding
a remark or phrase of the conversation but not the conversation itself.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his head, Stranko told Mosier not to walk out on his su-
pervisor.
Although Mosier denied having been told on numer-
ous occasions not to walk away from his supervisor, he
did not specifically deny such incident occurred.
Loy acknowledged knowing on October 31 Mosier
was a union supporter and that he previously suspected
Mosier had voted for the Union.
Stranko denied that his decision to issue the written
warning to or to discharge Mosier, who he acknowl-
edged was the only employee he saw wearing a union in-
signia, was caused by Mosier's union activities.
G. Analysis and Conclusions
The General Counsel and the Union contend the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
engaging in unlawful threats, interrogations, promises,
and statements regarding the Union; prohibiting employ-
ees from talking about the Union on company property
at any time; and discriminatorily suspending Richard
Zeigler, issuing a written warning to Robert Mosier, and
discharging and refusing to reinstate Robert Mosier and
Ronald Dick because of their union activities. The Re-
spondent denies having violated the Act and asserts as
defenses that the suspension of Zeigler and Mosier's
warning and discharge were for cause and that Dick quit
instead of being discharged.
Section 8(a)(1) of the Act prohibits an employer from
interfering with, restraining, or coercing its employees in
the exercise of the rights guaranteed in Section 7 of the
Act. Section 8(a)(3) of the Act provides in pertinent part:
"It shall be an unfair labor practice for an employer. . .
by discrimination in regard to hire or tenure of employ-
ment or any term or condition of employment to encour-
age or discourage membership in any labor organiza-
tion."
The test applied in determining whether a violation of
Section 8(a)(1) of the Act has occurred is "whether the
employer engaged in conduct which, it may reasonably
be said, tends to interfere with the free exercise of em-
ployee rights under the Act." Electrical Fittings Corp.,
216 NLRB 1076 (1975). On the granting of wage in-
creases to employees an employer, when confronted by a
union organizing campaign, must proceed as it would
have done had the union not been conducting its cam-
paign. Russell Stover Candies, 221 NLRB 441 (1975).
While an employer may also speak freely to employees
about issues arising in connection with a union organiza-
tion campaign, such statements cannot contain threats of
reprisal or force or promises of benefit. Components, Inc.,
197 NLRB 163 (1972).
The findings supra establish that about September 9
President Stranko interrogated Ronald Dick about which
way he was going to vote in a Board-conducted election
and promised to give employees raises if they did not
select the Union to represent them; on September 30
President Stranko threatened Robert Mosier and Russell
Bender with unspecified reprisals because the employees
had selected the Union as their bargaining representative;
on July 29 President Stranko threatened employees with
closing the plant and transferring work if the employees
selected the Union to represent them; in late August
Part-Owner Dale Brougher threatened the employees
with transferring or subcontracting the road joint work if
they selected the Union as their bargaining representa-
tive; in late August Brougher told employees the Re-
spondent could not give them a raise indicating it was
because of the Union; in late August Brougher told em-
ployees he would not negotiate with the Union; and in
late August President Stranko informed employees any
collective-bargaining agreement negotiated with the
Union would contain nothing except what the Respond-
ent wanted, thereby indicating to employees it would be
futile for them to select the Union as their bargaining
representative.
Applying the applicable law to these findings, I find
such conduct interfered with, restrained, and coerced the
employees in the exercise of the rights guaranteed in
Section 7 of the Act and the Respondent, by engaging in
such conduct, violated Section 8(a)(1) of the Act.
Insofar as employees were prohibited from talking
about the Union on company property, the evidence
supra establishes that about the latter part of August
Plant Superintendent Loy prohibited employees Michael
Zeigler, Allan Klose, and Russell Bender from talking
about the Union on company property at any time. Em-
ployees engaged in a union organizational campaign have
the right to solicit on plant premises subject only to the
restriction that it be on nonworking time. Stoddard-Quirk
Mfg. Co., 138 NLRB 615, 621 (1962). Since the employ-
ees here were prohibited from engaging in union solicita-
tion on company property at any time, I find about the
latter part of August the Respondent unlawfully prohib-
ited employees from talking about the Union on compa-
ny property at any time and thereby violated Section
8(a)(1) of the Act.
The remaining issues to be resolved are whether Rich-
ard Zeigler, Ronald Dick, and Robert Mosier were dis-
criminated against in their employment because of their
union activities as alleged.
The law is well settled that to discriminate against em-
ployees in their employment because of their union ac-
tivities violates Section 8(a)(3) and (1) of the Act. Where
motivation for discharge is at issue the General Counsel
must make a prima facie showing sufficient to support
the inference that protected activity by employees was a
motivating factor in an employer's decision to discharge
and the employer then has the burden of showing that
the employees would have been discharged absent that
protected activity. Wright Line, 251 NLRB 1083, 1089
(1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982), approved by the Supreme Court in
NLRB v. Transportation Management Corp., 462 U.S. 393
(1983). Direct evidence of discriminatory motivation is
not necessary to support a finding of discrimination and
such intent may be inferred from the record as a whole.
Heath International, 196 NLRB 318 (1972).
The evidence establishes Ronald Dick was discharged
by President Stranko rather than quitting his job as
Stranko alleges and that when Dick asked for reinstate-
ment he was refused. Prior to his discharge Dick, who
had signed a union authorization card and attended union
meetings, had been unlawfully interrogated by President
HILTY TANK CORP 989
Stranko concerning how he was going to vote in the
election and promised there would be raises if the Union
did not get in. Not only did Dick refuse to inform
Stranko, pursuant to his inquiry, how he was going to
vote in the union election, but after the Union won the
election Stranko indicated his displeasure at Dick by re-
marking Dick had done that to him after all Stranko,
who had previously rehired Dick when he quit his job,
had done for him For these reasons, including Dick's
union activities, President Stranko's blaming Dick in part
for the Union winning the election, and the unlawful in-
terrogation of Dick by Stranko, coupled with the Re-
spondent's union animus as established by its unlawful
conduct herein found, and having rejected the Respond-
ent's defense by finding Dick was discharged rather than
quit his job, I am persuaded and find that on November
17 the Respondent discriminatorily discharged and there-
after refused to reinstate Ronald Dick because of his
union activities and thereby violated Section 8(a)(3) and
(1) of the Act.
The evidence herein found shows Richard Zeigler was
active in the Union and instrumental in getting the union
organizing campaign started. On December 20 he was
suspended from work for 4 workdays without pay. Plant
Superintendent Loy, who admittedly thought Zeigler
had voted for the Union, had questioned Zeigler about
whether the Respondent could do anything to keep the
Union out and had instructed Zeigler, along with two
other employees, not to campaign for the Union on com-
pany premises at any time While Loy claimed Zeigler
was suspended for failing to follow company policy by
not calling in personally to be o ff from work or giving
an excuse, and because he believed Zeigler had gone
deer hunting instead while he was off from work, the
evidence clearly refutes such reasons. Various employees
testified and Loy admitted that in the past employees and
other persons had called in for other employees who
were sick The credited testimony also shows that on
November 19 Reisinger and on November 20 both Rei-
singer and Zeigler's sister, consistent with existing prac-
tices, had informed Loy that Zeigler would be off from
work and the reasons, which included sickness and an
eye injury, and not to go deer hunting.
Based on the foregoing evidence including Zeigler's
union activities, Plant Superintendent Loy's belief
Zeigler had voted for the Union and his questioning
Zeigler about keeping the Union out and unlawfully pro-
hibiting him from campaigning for the Union, the Re-
spondent's union animus as established by its unlawful
conduct herein found, and having rejected the Respond-
ent's defense that Zeigler had failed to follow company
policy in being off from work, I am persuaded and find
on December 20 the Respondent discriminatorily sus-
pended Richard Zeigler for 4 days without pay because
of his union activities and thereby violated Section
8(a)(3) and (1) of the Act.
Insofar as Robert Mosier is concerned, the findings es-
tablish Mosier was an active union adherent of which the
Respondent was aware. President Stranko, who dis-
charged Mosier, had also unlawfully threatened him on
September 30 with unspecified reprisals because the em-
ployees had selected the Union as their bargaining repre-
sentative. While these factors, coupled with the Re-
spondent's union animus as established by its unlawful
conduct herein found, might give rise to a finding that
Mosier's written warning dated October 24 and his dis-
charge on October 31 were because of his union activi-
ties, I am persuaded and find based on the credited evi-
dence that Mosier's written warning and discharge were
not because of his union activities but rather for cause,
including his insubordination on October 31 in deliber-
ately walking away from his supervisor, Plant Superin-
tendent Loy, while Loy was talking to him about the
batteries.
The incidents for which Mosier received his written
warning were all incidents acknowledged by Mosier to
have occurred previously, and while Mosier attempted
to discount their significance they were of a continuing
nature and had been recorded in his work record and he
had been reprimanded or warned about them at the time.
Mosier had also previously been warned several times by
President Stranko, including twice shortly before his dis-
charge, about walking away from his supervisors while
they were talking to him, and he had previously been
fired for this same reason. Notwithstanding such warn-
ings and his prior discharge for a similar offense, Mosier
on October 31 again walked away from Plant Superin-
tendent Loy while Loy was talking to him about the bat-
teries, for which Stranko discharged him. Under these
circumstances and for the reason indicated, I find the Re-
spondent issued the written warning to Mosier dated Oc-
tober 24 and discharged him on October 31 for cause
and did not discriminatorily take such action against him
or refuse to reinstate him because of his union activities
in violation of Section 8(a)(3) and (1) of the Act as al-
leged.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section
III, above, found to constitute unfair labor practices, oc-
curring in connection with the operations of the Re-
spondent descnbed 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 thereof.
CONCLUSIONS OF LAW
1. Hilty Tank Corporation is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of
the Act.
2. Teamsters Local Union No. 776 is a labor organza-
tion within the meaning of Section 2(5) of the Act.
3. By interrogating an employee about which way he
was going to vote in a Board-conducted election, by
promising to give employees raises if they did not select
the Union to represent them, by threatening employees
with unspecified reprisals because the employees had se-
lected the Union as their bargaining representative; by
threatening employees with closing the plant and trans-
ferring work if they selected the Union to represent
them, by threatening employees with transferring or sub-
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contracting the road joint work if they selected the
Union as their bargaining representative, by telling em-
ployees it could not give them a raise indicating it was
because of the Union, by telling employees it would not
negotiate with the Union, by indicating to employees it
would be futile for employees to select the Union as
their bargaining representative, and by unlawfully pro-
hibiting employees from talking about the Union on
company property at any time, the Respondent has inter-
fered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act
and has engaged in unfair labor practices in violation of
Section 8(a)(1) of the Act.
4. By discriminatorily discharging Ronald Dick on
November 17, 1983, and thereafter refusing to reinstate
him because of his union activities; and by discriminatori-
ly suspending Richard Zeigler on December 20, 1983,
for 4 days without pay because of his union activities,
the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act, I shall recommend it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act. Accordingly, the Re-
spondent shall be ordered to offer immediate and full re-
instatement to Ronald Dick to his former job or, if that
job no longer exists, to a substantially equivalent job,
without prejudice to his seniority and other rights and
privileges, and to make him whole for any loss of earn-
ings and other compensation he may have suffered as a
result of the discrimination against him in his employ-
ment herein found by discriminatorily discharging him
on November 17, 1983, and thereafter refusing to rein-
state him. The Respondent shall also be ordered to make
Richard Zeigler whole for any loss of earnings and other
compensation he may have suffered as a result of the dis-
crimination against him in his employment herein found
by discriminatorily suspending him on December 20,
1983. Backpay shall be computed in accordance with the
manner prescribed in F W. Woolworth Co., 90 NLRB
289 (1950), with interest as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977). See generally Isis Plumbing
Co.,138 NLRB 716 (1962).
The Respondent shall also be ordered to expunge from
its files any references to the discriminatory discharge of
Ronald Dick and the discriminatory suspension of Rich-
ard Zeigler herein found and to notify each of them in
writing this has been done and evidence of its unlawful
conduct will not be used as a basis for future personnel
actions against them.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed22
22 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
ORDER
The Respondent, Hilty Tank Corporation, Carlisle,
Pennsylvania, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating employees about which way they are
going to vote in Board-conducted elections.
(b) Promising employees raises if they do not select
the Union to represent them.
(c) Threatening employees with unspecified reprisals
because they have selected the Union as their bargaining
representative.
(d) Threatening employees with closing the plant and
transferring work if they select the Union to represent
them.
(e) Threatening employees with transferring or sub-
contracting the road joint work if they select the Union
as their bargaining representative.
(f) Telling employees it could not give them a raise in-
dicating it is because of the Union.
(g) Telling employees it will not negotiate with the
Union.
(h) Indicating to employees it would be futile for them
to select the Union as their bargaining representative.
(i) Unlawfully prohibiting employees from talking
about the Union on company property at any time
(j) Discouraging membership in and activities on
behalf of Teamsters Local Union No. 776, or any other
labor organization, by discharging, refusing to reinstate,
suspending, or in any other manner discriminating
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment.
(k) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate and full reinstatement to Ronald
Dick to his former job or, if that job no longer exists, to
a substantially equivalent job, without prejudice to his
seniority and other rights and privileges, and make him
whole for any loss of earnings and other compensation
he may have suffered by reason of the discrimination
against him by discnminatorily discharging him on No-
vember 17, 1983, and thereafter refusing to reinstate him
in the manner set forth in the section of this decision en-
titled "The Remedy."
(b) Make Richard Zeigler whole for any loss of earn-
ings and other compensation he may have suffered by
reason of the discrimination against him by discrimina-
torily suspending him on December 20, 1983, in the
manner set forth in the section of this decision entitled
"The Remedy."
(c) Expunge from its files any references to the dis-
charge of Ronald Dick on November 17, 1983, and to
the suspension of Richard Zeigler on December 20, 1983,
and notify each of them in writing this has been done
Board and all objections to them shall be deemed waived for all pur-
poses
HILTY TANK CORP. 991
and evidence of its unlawful conduct will not be used as
a basis for future personnel actions against them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its Carlisle, Pennsylvania plant copies of the
attached notice marked "Appendix."23 . Copies of the
notice, on forms provided by the Regional Director for
Region 4, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the amended consolidat-
ed complaint is dismissed insofar as it alleges unfair labor
practices not specifically found herein.
23 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interrogate our employees about which
way they are going to vote in Board-conducted elec-
tions.
WE WILL NOT promise our employees raises if they do
not select the Union to represent them.
WE WILL NOT threaten our employees with unspeci-
fied reprisals because they have selected the Union as
their bargaining representative.
WE WILL NOT threaten our employees with closing the
plant and transferring work if they select the Union to
represent them.
WE WILL NOT threaten our employees with transfer-
ring or subcontracting the road joint work if they select
the Union as their bargaining representative.
WE WILL NOT tell our employees we cannot give them
a raise indicating it is because of the Union.
WE WILL NOT tell our employees we will not negoti-
ate with the Union.
WE WILL NOT indicate to our employees it would be
futile for them to select the Union as their bargaining
representative.
WE WILL NOT unlawfully prohibit our employees from
talking about the Union on company property at any
time.
WE WILL NOT discourage membership in and activities
on behalf of Teamsters Local Union No. 776, or any
other labor organization, by discharging, refusing to rein-
state, suspending, or in any other manner discriminating
against employees in regard to their hire or tenure of em-
ployment or any term or condition of employment.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
WE WILL offer immediate and full reinstatement to
Ronald Dick to his former job or, if that job no longer
exists, to a substantially equivalent job, without prejudice
to his seniority and other rights and privileges, and WE
WILL make him and Richard Zeigler whole for any loss
of earnings and other compensation they may have suf-
fered by reason of our discrimination against them, with
interest.
WE WILL expunge from our files any references to the
discharge of Ronald Dick on November 17, 1983, and to
the suspension of Richard Zeigler on December 20, 1983,
and WE WILL notify each of them in writing this has
been done and evidence of our unlawful conduct will not
be used as a basis for future personnel actions against
them.
HILTY TANK CORPORATION