Windsor Plastics, Inc.

National Labor Relations Board - Board Decisions

Sep 8, 1977

231 N.L.R.B. 1222 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Windsor Plastics, Inc. and UAW International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America. Case 25-CA-
8548
September 8, 1977
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On June 3, 1977, Administrative Law Judge John
F. Corbley issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, in response to which the
General Counsel filed an answering brief and a brief
in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge, to modify his remedy, 2 and to adopt his
recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Windsor Plastics,
Inc., Evansville, Indiana, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order, except that the attached
notice is substituted for that of the Administrative
Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Lavw 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 incorrect. Standard Dry) Wall Products,
Ian. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (C.A. 3. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 In accordance with our decision in Florida Steel Corporation, 231
NL RB 651 (1977). we shall apply the current 7-percent rate for penods prior
to August 25. 1977. in which the "adjusted prime interest rate" as used by
tile Internal Revenue Service in calculating interest on tax payments was at
least 7 percent.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives you, as
employees, certain rights including the following:
To self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of your own choosing
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all such activities.
WE WILL NOT discharge you or otherwise
discriminate against you in respect to your jobs,
tenure, or other terms and conditions of employ-
ment because you have joined or supported UAW
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America, or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL offer to reinstate Melanie Jones to her
former position or, if that job no longer exists, to
a substantially equivalent position with full
seniority and all other rights and privileges.
WE WILL make up all pay lost by Melanie Jones
as the result of her discharge, plus 7-percent
interest.
WINDSOR PLASTICS, INC.
DECISION
STATEMENT OF THE CASE
JOHN F. CORBLEY, Administrative Law Judge: A hearing
was held in this case on March 10 and 11, 1977, at
Evansville, Indiana, pursuant to a charge filed by UAW
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America, hereinafter
referred to as the Union, on December 23, 1976, and
thereafter served upon Respondent by registered mail on
the same date; on a complaint and notice of hearing issued
on February 3, 1977, by the Acting Regional Director for
Region 25 of the National Labor Relations Board, which
was duly served upon Respondent, and an amendment to
complaint issued by the Regional Director for Region 25
on February 28, 1977, which was also served upon
Respondent. The complaint, as amended, and further
amended on the record at the hearing, alleges that
Respondent through its supervisor, James Ohning, told its
employees on or about October 7, 1976, that they were not
231 NLRB No. 109
1222
WINDSOR PLASTICS, INC.
allowed to wear union buttons or insignia thereby violating
Section 8(a)(1) of the Act; and further alleges that, on or
about November 24, 1976, Respondent discharged and has
subsequently refused to reinstate Melanie Damm, hereinaf-
ter referred to as Melanie Jones or Jones I because of that
employee's union or other concerted activities and that
Respondent has thereby violated, and is violating, Section
8(a)(1) and (3) of the Act. In its answers to the complaint
and amendment to the complaint, which were also duly
served, and in its amendment to its answer on the record at
the hearing, Respondent has denied the commission of any
unfair labor practices.
For reasons which shall appear hereinafter, I find and
conclude that Respondent has violated Section 8(a)(1) and
(3) of the Act in respect to its discharge of Melanie Jones
but I shall recommend that the other allegation of the
complaint in respect to Ohning be dismissed.
At the hearing the General Counsel and Respondent
were represented by counsel. The parties were given full
opportunity to examine and cross-examine witnesses, to
introduce evidence, and to file briefs. The parties waived
oral argument at the conclusion of the hearing. Briefs have
subsequently been filed by the General Counsel and
Respondent and have been considered. Upon the entire
record 2 in this case and from my observation of the
witnesses, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The complaint alleges, the answer admits, and I find that
Respondent is now, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The parties stipulated, and I find, that UAW Interna-
tional Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
1ii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Respondent's Relevant Hierarchy
The parties stipulated, and I find, that the following
named individuals occupied the positions set opposite their
respective names, are supervisors within the meaning of the
Act and have been and are now agents of the Respondent,
acting in its behalf:
Larry Hansen
Robert Van Winkle
George Gard
Dale Tool
Robert Fine
Jim Attebury
Bob Clark
James Ohning
Larry Ziegler
Dir. of Personnel
Production Mgr.
Foreman
Foreman
Finishing Supt.
Foreman
Quality Control Mgr.
Second Shift Supt.
Molding Supt.
Respondent is, and has been at all times material herein,
a corporation duly organized under, and existing by virtue
of, the laws of the State of Indiana.
At all times material herein, Respondent has maintained
its principal office and place of business at Evansville,
Indiana, herein called the facility, and is and has been at all
times material herein engaged at said facility and location
in the manufacture, sale, and distribution of molded
plastics and related products.
During the 12 months preceding the issuance of the
complaint, a representative period, Respondent in the
course and conduct of its business operation purchased,
transferred, and delivered to its facility goods and materials
valued in excess of $50,000 which were transported to such
facility directly from States other than the State of Indiana.
Also during the 12 months preceding the issuance of the
complaint, a representative period, Respondent, in the
course and conduct of its business operations, manufac-
tured, sold, and distributed at such facility products valued
in excess of $50,000 which were shipped from said facility
directly to States other than the State of Indiana.
' Her surname has subsequently been changed to Jones.
Pursuant to the General Counsel's and Respondent's unopposed
motions, the transcript of the record in these proceedings have been noted
and are herebN corrected.
At the hearing arrangements were made for the receipt of certain joint
exhibits to he prepared following the conclusion of the hearing. These joint
exhibits were subsequently furnished to me and are hereby received into
evidence. With the receipt of the aforesaid joint exhibits the record of this
proceeding is hereby closed.
The parties have further stipulated (in Jt. Exh. I(d)) that I may infer what
In view of the record as a whole, I further conclude that all
such individuals, except for Dale Tool, occupied such
supervisory and agent positions at all pertinent times
herein.
Inasmuch as Delmer Daubs, Respondent's took action in
behalf of Respondent to oppose the Union in the Union's
organizational campaign during the summer of 1976-by
writing letters and speaking to employees to dissuade them
from supporting the Union-I conclude that Daubs was
Respondent's agent acting on its behalf during such period.
B. Background and Sequence of Events
Melanie Jones, whose discharge gave rise to the present
proceeding, had been employed by Respondent about 2-
1/2 years when the Union began its organizational
campaign at a meeting on May 11, 1976. 3 Jones attended
that meeting and signed an authorization card on the same
date. Thereafter, she became very active in the Union's
campaign. Thus, she immediately became a member of the
Union's "In-Plant Organizing Committee" and wore a
button so indicating. Later in the campaign she wore a
certain vulgar expressions are where the transcriber of the Employment
Security Hearing typed only the first letter of said expressions a practice I
also intend to follow in wnting this Decision.
The General Counsel's apparent request in Jt. Exh. I(b) that I make a
further correction in Jt. Exh. I(a) at p. 6. Is. 33 and 34. is denied. consistent
with my statement at the heanng, since it is not joined in by Respondent's
counsel.
I The Union started its campaign after some 35 employee authorization
cards had been mailed to its regional office. All dates appearing hereinafter
occurred in 1976 unless otherwise noted.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Vote UAW" T-shirt. She distributed union literature at
the entrance to the plant at least once a week from May to
about August 20 on every occasion when this was done
except one. She attended all of the union meetings. She also
passed out union authorization cards and signed up about
15 of her fellow employees.
Respondent was advised in a letter dated June 7, 1976,
from Rex Wiseman, the Union's organizing representative,
that Jones 4 was a member of the Union's in-plant
organizing committee. Respondent was, however, already
aware of Jones' position, as will appear.
On or about May 12 or 13, on the first occasion when the
organizing committee passed out handbills, Jones was one
of those so engaged along with at least six other employees.
While the employees were standing there handbilling,
Danny Vincent, Respondent's personnel manager, came
into the front of the building and saw Jones. He told her
that if the employees wanted to pass "those things" out
they should get out in the parking lot. Jones replied that the
employees had a right to be there. Vincent then proceeded
through the door, turned, stuck his head out, and warned
the employees that, if they did not go to the parking lot,
Vincent was going to call the police. 5
Jones thereafter checked with Rex Wiseman to verify
that the employees had the right to handbill at the entrance
and was assured that they did.
Nothing further occurred on this occasion and the police
were not apparently called.
On May 14, Daubs, Respondent's president, directed a
letter to Respondent's employees criticizing unions, advis-
ing them that Respondent "absolutely opposes Unions"
and encouraging them not to join.
About mid-May - after the union campaign had begun
- Larry Carroll, then the group leader in 18-B but not at
the time a union adherent, was asked by his foreman,
George Gard, to speak to Daubs, Respondent's president.
Carroll spoke with Daubs as requested. Daubs showed
Carroll some UAW collective-bargaining agreements from
other plastic plants and told Carroll these contracts were
"lousy" compared with Respondent's benefits. Daubs
asked Carroll what Respondent could do to "Keep these
f- people out." Carroll replied that he did not know, that
employees had a lot of complaints and that they were just
looking for help somewhere else.
On May 26, Carroll joined the Union. The next day
Carroll showed up at work wearing an in-plant organizing
committee button. That same day his foreman, Gard, told
Carroll to go see Van Winkle.
Carroll did as directed and met Van Winkle in an office
across from Respondent's personnel office. Van Winkle
told Carroll to read an excerpt from Respondent's
regulations about a supervisor engaging in union activities.
Carroll told Van Winkle that a group leader was not a
supervisor and called to Van Winkle's attention the fact
that group leaders had voted in the last election (apparent-
ly conducted by the Board). Van Winkle, however, told
Carroll that Carroll could be fired for engaging in union
I Whose name was then Melanie Damm.
' In view of Vincent's position as personnel manager (which he has
occupied over 9 years), the fact that he participated in the decision to
terminate Jones on November 24 and the fact that his office maintains a log
of employee separations for the use of the Equal Employment Opportunity
activities. The meeting ended with Van Winkle's request to
Carroll to think about it.
On or about June 4, Carroll was handbilling outside
Respondent's entrance along with Ken Shockley, another
employee. Jim Johnson, a group leader, told Carroll and
Shockley that Jim Ohning, the second-shift superintendent,
wanted them to come inside the plant building. They
refused to enter - since it was not their shift. They
suggested to Johnson that Ohning come outside. Johnson
apparently relayed this message to Ohning who stuck his
head out the door and directed Carroll and Shockley to
come in. They again refused. Ohning said he had
instructions from higher management to "run them off' if
they showed up to handbill that evening and that, if they
did not leave, he was going to call the police. Carroll and
Shockley told Ohning to call the police because Carroll and
Shockley said they had the legal right to be where they
were. To this Ohning said, "You'll get yours Monday
then."
It does not appear, however, that the police were
summoned. Carroll was discharged in July. 6
1. The "eat beans" episode
On June 18 the employees of Jones' work section had just
gone on break before noon and were standing in line in the
next work section (18-A) talking about the Union. Jones
was the speaker. While she was talking, another employee
in the group warned her to watch what she was saying
because Scott Hagan, the group leader of 18-A, was
standing right behind her. Jones turned and noticed Hagan
standing nearby some 5-6 feet away with his head inclined
as if he were listening. Jones looked at him and said "Eat
beans, g---- it." The final break buzzer then sounded
and Jones walked away. Hagan had been at his desk a full
50 feet away when the employees from Jones' section had
first entered his area.
Dennis Nettles, a setup man in 18-A, was a witness to the
foregoing incident.
Hagan went home for lunch and, when he returned, he
reported the confrontation with Jones to his foreman,
George Gard, telling Gard that Jones had said, "Eat me,
Scott." Gard and Hagan then advised Van Winkle, the
production manager, about the incident.
In the early afternoon, Van Winkle and Fine, the
finishing superintendent, made inquiries in the area to
determine if any employee had witnessed the incident and
could repeat what was said. Van Winkle spoke to the
women employees who had been close by. According to
Van Winkle, none could verify what occurred. Dennis
Nettles learned about Van Winkle's inquiry and con-
fronted Van Winkle. Nettles told Van Winkle that Jones
had told Hagan to "eat beans." Van Winkle asked if
Nettles was certain. Nettles said that he was.
Nettles then advised Jones that Hagan had reported to
management that Jones had said "eat me" to Hagan in the
incident.
Commission, I conclude that he was Respondent's agent, acting on its
behalf, at all times pertinent hereto.
6 The findings as to the incidents involving Carroll are based on his
credible and undisputed testimony in this regard. Ohning did not testify.
1224
WINDSOR PLASTICS, INC.
Jones promptly asked for a meeting with Van Winkle to
straighten out this matter. Her request was relayed from
Carroll, her then group leader, to Gard, the foreman, and
to Van Winkle. A meeting was held at or about 3 o'clock
that afternoon in the office. In attendance besides Jones
were Van Winkle, Fine, and Hagan.
Jones began the conversation by stating that she
understood she had been the topic of a discussion and she
wanted to know what it was all about. Van Winkle replied
that she should tell them. Jones said she wanted to know
what Hagan had said she had said. Van Winkle rejoined
that she should tell them. Jones then stated she had told
Hagan to "eat beans." Hagan said he heard her say "eat
me" but he was not going to argue. He added that either
version was disrespectful and group leaders (of which
Hagan was one) deserved more respect. Van Winkle
wanted to know why she made a remark to Hagan and
Jones stated she felt that Hagan had been eavesdropping.
Van Winkle inquired whether Jones did not think she owed
a group leader more respect than this. Jones retorted that
she did not respect people who did not earn it. Van Winkle
responded that she had apparently lost respect for a lot of
people and he was sure he was one of them. Jones did not
answer this last remark.
Van Winkle then launched into a philippic on an entirely
different subject - unless this was what was on his mind
all time - the Union's organizational campaign. Van
Winkle noted that the organizing drive had gone on a
matter of months. He said that, if the people wanted a
union, this was fine. However, he continued, if they did
not, he wished "you people would stop cramming those g-
handbills down their throats." Jones stated that the union
supporters did not cram anything down anyone's throat -
that if an employee wanted a handbill, he would take one,
if he did not, this was okay.
Van Winkle also inquired how Jones' mother felt about
Jones' union involvement (Van Winkle and Jones' mother
were acquainted, having worked together for a different
I The findings as to this sequence of events are based primarily upon the
credible testimony of Jones in this regard as corroborated and extended by
the credible testimony of Nettles, and the credible testimony of Carroll, all
which is also supported by the logical sequence of events. Van Winkle
admitted that Jones initiated the meeting in the afternoon to discuss what
had happended. Her obvious effort to clear herself immediately upon
learning of the charges against her lends credence to her version as to what
she said to Hagan. Her version of what she said is also corroborated by
Nettles. Hagan's version is uncorroborated. Hagan did not deny that he
moved from a point 50 feet away from the assembled employees to a point
some 5 to 6 feet away nor did he deny that he was eavesdropping. Hagan
may well have misunderstood Jones due to the facts that a number of
employees were gathered talking, there is noise from a blower in the plant,
and the expressions "Eat me, Scott" and "Eat beans, g-- - it" could well
sound similar in a noisy atmosphere.
I do not credit Van Winkle's denial that Nettles told Van Winkle the true
version on the day in question. Van Winkle's denial came after he had
earlier stated he could not recall whether he had talked to Nettles.
Moreover, Nettles, who is still employed, had no reason to lie about the
incident. His speaking to Van Winkle about it is consistent with his
informing Jones about what Nettles had heard Hagan had claimed Jones
said and Jones' prompt action to clear up the matter.
Jones' version of her confrontation with Van Winkle, Fine, and Hagan
later in the afternoon is largely corroborated by Van Winkle and Hagan -
particularly the fact that she had the burden to tell what was said (rather
than being given the benefit of the accusation against her) and the
discussion of the respect she should show a group leader. Fine did not
testifr.
employer about 12 years previously). Jones said that her
mother was disappointed. 7
On August 17, Daubs directed another letter to Respon-
dent's employees referring to the upcoming Board election.
This letter pointed out that the employees had a high
degree of certainty based on the past performance of the
Respondent but "with the union in the picture very little is
certain and the future becomes unpredictable." The letter
stated that, if the Union won the election, all that the law
required was that the parties bargain in good faith and that
neither Respondent nor the Union was required to agree to
any proposal or to make any concessions.
A Board-conducted election in Case 25-RC-6374 was
held at Respondent's plant on August 26. Jones was one of
the Union's observers. The Union lost the election by a
vote of 298 to 92, no objections were filed, and a certificate
of result issued on September 3.
Previously, on June 18, unfair labor practice charges had
been filed against Respondent by the Union in Cases 25-
CA-8012 and 25-CA-8012-2. A complaint was issued on
July 27. This complaint was, however, resolved by a
settlement agreement approved by the Regional Director
on October 4. A letter of satisfactory compliance with the
settlement agreement was issued on December 21.
Following the Union's loss of the election, Jones
continued to wear her union button to work and, on
occasion, her UAW T-shirt. In one incident, which I place
sometime in September,8 she was wearing her union button
when she was approached by Jim Ohning, second-shift
superintendent and an admitted supervisor, who told Jones
that Jones could not wear her button anymore. Jones
disagreed and said that she could. Ohning insisted and
added that she could not wear the button for another year.
Jones corrected Ohning and averred that, although there
My finding that Hagan said that, whatever Jones' remark had been, a
group leader is entitled to more respect is based on Hagan's credible and
undisputed testimony in this regard.
Neither Van Winkle nor Hagan denied Jones' testimony as to Van
Winkle's caustic comments about the Union's handbilling and the effect of
Jones' unionism on Jones' mother. I do not credit Van Winkle's testimony.
in his second appearance on the stand, that he counseled Jones in this
session about what she should do in future similar incidents. Van Winkle's
testimony as to this counseling was credibly denied by Jones, not
corroborated by Hagan, and not mentioned by Van Winkle in his earlier
testimony about the same incident.
My finding as to the date of the incident is based on a note in
Respondent's file whereon the incident was recorded - a note about which
more will be said later in this Decision.
I Jones testified, variously, that this occurred 2 weeks after she filed for
divorce on September 23, that it occurred in late September or early
October, that she could have told the Board agent that it occurred about
September, and it was stipulated she told counsel for the General Counsel
before the hearing that the incident occurred "some weeks after the
election" of August 26.
I conclude that the incident occurred in September. Jones placed it in
that month in her earlier recitals of it (when her memory would naturally be
the freshest) to the Board agent and to the General Counsel. Thus, I
construe her statement to the General Counsel (i.e.. that it occurred "some
weeks" after the election) to mean that it occurred less than a month after
the election of August 26. For, in the logic of language, it seems to me that if
the event had occurred more than a month later (in October) Jones would
have said "a month later" rather than "some weeks" later.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not be another union election for a year, Jones could
wear her union button if she desired. 9
2. Jones' discharge on November 24
There are considerable conflicts in the testimony of the
witnesses for the General Counsel on one hand, and
witnesses for Respondent on the other, as to the events of
November 24, the day Jones was discharged. Indeed, the
testimony of some of Respondent's witnesses on significant
matters is itself self-contradictory. What is clear is that the
workload was extremely heavy that morning; 10 that one of
the two hot-stamping machines which Jones was operating
that morning was malfunctioning; that in her frustration
over this incident she used vulgar language in the presence
of her group leader, Tim Hudson, threw at least one "part"
(the outside front frame of a television set), and was
discharged.'
Based on my resolution of these credibility conflicts, I
conclude that the following specific events occurred.
On the morning in question Jones was operating two hot-
stamping machines. These machines produced small silver
borders on the television frame by stamping foil thereon.
At least one of these machines had been malfunctioning for
sometime.
In Jones' group, in addition to Jones and some five other
machine operators, were a group leader, Tim Hudson, and
a setup man, Tom Garrett.
A group leader is not a supervisor but is an employee.
Group leaders voted without challenge in two Board-
conducted elections including the one in 1976. A group
leader instructs employees how to run a job, checks
employees' work periodically, decides which jobs are to be
done from day to day, and helps in machine setup.12
Before 7 a.m. on November 24, Hudson checked Jones'
machine. Not long thereafter it was malfunctioning and
Hudson corrected it.
Again, a little while later - somewhere between 7:15
a.m. and 8 a.m. - one of Jones' machines again
malfunctioned due to a fouling of the foil on its rollers
which caused one of the machine brackets to move out of
place. This, in turn, meant that the bracket would not hold
the television frame for a solid hit (hot-stamp) and that,
9 These findings are based on the credible and undisputed testimony of
Jones in this regard. Ohning did not testify.
"' Jones credibly testified, and I find that, parts (television frames)
arrived at her station on a overhead conveyor - usually one part on every
other conveyor hook or every third conveyor hook. On the morning of
November 24. there was a part on every conveyor hook.
" Jones credibly so testified and Hudson corroborated her.
2 Hudson and Scott Hagan credibly so testified.
':1 Garrett credibly so testified and Jones did not deny this.I The remaining findings as to this incident are made primarily on the
basis of the credible testimony of Jones in this regard. Hudson did not deny
that Hudson used the word "g-" to descnbe the machine. He corroborated
Jones' mention of the timestudy. That Jones tried to explain the problem but
that Hudson refused to listen is supported by the circumstances - as both
Jones and Hudson testified of an incident a few minutes later during the
course of which Jones told Hudson that she had tried to explain herself in
the above-described incident but that Hudson would not give her a chance.
Hudson in his testimony before me and in the unemployment compensation
hearing gave some four different versions of the expletives Jones purported-
ly hurled at him on this occasion; hence, no one version can be believed.
While Hudson, at least at one point in his testimony, claimed that Jones
called him a "m -- f-" at the conclusion of this incident, this accusation
was not confirmed by Garrett in the Board hearing and Garrett at the
when the hit was made, the frame would simply "flop."
Jones therefore called for help and both Group Leader
Hudson and setup man Garrett came to Jones' aid.
Garrett arrived first and started cutting the foil from the
rollers. Hudson then came and Jones began complaining
about the operation of the machine. Jones told Judson that
the "f-" machine was broken. '3 Hudson asked if the foil
was again wrapped around the rollers. Jones attempted to
explain that this was only a part of the problem (the other
part being that this caused the bracket to be out of place),
but could not get the words out when Hudson interrupted
and said "If you pull the g-- foil through with your
hands, Melanie, it wouldn't wrap around." Jones again
attempted to explain when, in a stronger tone, Hudson
repeated himself. At this point, Garrett had finished
trimming away the foil and had left but Jones became
upset and reacted to Hudson. Jones told Hudson she was
"not f- with the machine anymore today" and told
Hudson to fix the machine or get someone else who could.
She told Hudson that the job was not time studied on the
basis of the added task of having the operator pull the foil
through the rollers, nor with television frames coming
around on every hook of the conveyor, nor with the
operator required to do her own setup. To this Hudson
responded that Jones did not do setup work on her
machine (she did, according to her undisputed testimony,
do such work). Jones became even more angry and told
Hudson to "kiss my a-." At this point, Hudson left. 14
During the course of this incident and before Garrett left,
Jones threw a television frame into a nearby aisle but did
not hit anyone. 15 This was the only part or frame she threw
at this time.?6
Hudson then went and reported the incident to his
foreman, Ron Woodford. Woodford said that he would tell
Van Winkle about what Hudson told him.
Meanwhile, Jones' machine continued to malfunction
and she again called for aid. Garrett went to help her. She
was crying. Garrett suggested that she take a break. She
said she did not want to go to the "f- bathroom," she just
wanted her machine to run right. Garrett then pointed his
finger at her and told her not to start "b--" at him. She
said she was not "b--" at him, but just wanted her
compensation hearing said only that Jones called Hudson "something like
that." Jones credibly denied that she called Hudson this name. Brenda
Tucker, a coworker, was present at the conclusion of the incident and heard
Jones say to Hudson, "kiss my a-," but did not hear Jones then call
Hudson by that name, despite the fact, Tucker testified, Hudson promptly
left after being told by Jones to kiss her a-. Jones admitted saying "kiss my
a-" to Hudson in this incident but only once, which, I conclude, was at the
end of it. It is highly probable that Hudson mistook some of Jones' words
during the course of the incident for the appellation "min-- f--." There
was considerable noise in the work area due to the blower and, besides this,
Hudson has a 780-8percent hearing loss in one ear. I also note, in judging
Hudson's credibility, that he denied at the hearing that any employee ever
previously said to him "kiss my a-." This latter testimony is contradicted
by his testimony at the unemployment compensation hearing.
Jones' several descriptions of this incident are consistent.
is Hudson and Garrett both credibly so testified. I do not credit Jones'
testimony that the only occasion she threw a television frame that day
occurred later when - I shall find - she threw another one.
"6 I do not credit Hudson's version that she threw two frames on this
occasion which is not corroborated by Jones nor by Garrett who should still
have been close by, because, per Hudson, the second one was thrown almost
immediately after the first one.
1226
WINDSOR PLASTICS, INC.
machine to run right. He said you are "b--" at me. Jones
then said she felt like hitting someone, to which Garrett
responded that it was not going to be him. With this Jones
picked up a television frame, that was scrap, and threw it
on the floor. Garrett asked her why she did this and she
said something to the effect that it was to relieve her. He
then walked off.'
Garrett immediately ran into Hudson and told Hudson
that he was not going to work with Jones while she was
acting like that.' 8
Hudson then confronted Jones again and told her to
operate her machine. She responded that it was not
working. He then proceeded to inspect the "hob" to see if it
was broken. Noticing what Hudson was doing, Jones said
that the hob was not busted and asked him to watch her
operate the malfunctioning machine so that he could see
what was wrong. She did so and the television frame
flopped when stamped, as it had done before. Hudson thus
saw the problem and fixed it. When he did so, Jones told
him that this is what she had tried to tell him before but he
would not listen. He denied this. Thereafter either Hudson
or Garrett helped Jones get caught up with her work and
Hudson left.' 9
During the course of this incident Jones tripped over
some television frames standing next to a barrel and
knocked them on the floor.2 0
Before these latter incidents with Garrett and Hudson
(which resulted in the final repair of Jones' machine) had
occurred but after the first incident had been reported to
Woodford, Foreman Woodford had left to see Van Winkle
to attend a "scrap" meeting and to tell Van Winkle about
the first incident wherein Jones had told Hudson to kiss her
a-.
Woodford apparently did not tell Van Winkle what
Hudson had told Woodford until after the "scrap"
meeting. Van Winkle had already learned of the event
between 8:30 and 8:45 a.m. from the finishing superinten-
dent Robert Fine. The latter had informed Van Winkle
that there had been an incident on the RCA (television
frame) line where Jones worked. Fine advised Van Winkle
that the matter had been straightened out and that they
could go ahead with the "scrap" meeting scheduled for that
17 These findings are based on a composite of the credible testimony of
Jones and Garrett in this regard where they corroborate or do not essentially
dispute each other. Jones placed this incident after the final repair of her
machine that morning by Hudson a repair I shall shortly discuss. I
conclude that it was before, as Garrett testified and Hudson in part
corroborated. because the continued malfunction of the machine would
explain Jones' continued frustration.
'i Garrett and Hudson credibly so testified.
'" These findings are based on a composite of the testimony of Jones and
Hudson in this regard which is corroborative even as to the detail of his
looking at the hob. Jones testified that Garrett helped her get caught up,
whereas Hudson said that Hudson helped her and Garrett did not mention
helping her. This last difference bears no relevance to the ultimate issues
here. I do not credit Garrett's testimony that Jones called Hudson "a no-
good a-hole" on this occasion which is not claimed by Hudson nor
corroborated by Jones.
211 Jones credihlb so testified and was corroborated by June Gray. a
co, orker. I do not credit Hudson's claim that Jones kicked over these parts.
21 These findings are based on the undisputed testimony of Van Winkle
in this regard Woodford did not testify. I do not credit Van Winkle's further
testimony that Woodford also told him at this time that Jones had kicked
over some parts. for Hudson testified that he did not tell Woodford about
morning before taking up the incident with Woodford and
the people involved.
The scrap meeting went ahead as scheduled and
Woodford was in attendance. After the meeting concluded,
Van Winkle asked Woodford to remain and inquired if
Woodford had learned of the incident involving Jones.
Woodford answered in the affirmative and described to
Van Winkle what Woodford had been told by Hudson
earlier. Specifically he told Van Winkle that Jones had used
abusive language and had thrown some parts.2'
Van Winkle then spoke to Hudson - which would have
been after 9:30 a.m. following the conclusion of all the
incidents in question - and Hudson related that there had
been several incidents, that Jones had used certain vulgar
language and had thrown one television frame into the
shipping department. Hudson also claimed that Jones had
kicked some television frames.
After speaking with Hudson, Van Winkle went to
Respondent's personnel office, where he met with Person-
nel Director Larry Hansen and Personnel Manager Danny
Vincent and described to them what he had been told by
Woodford and Hudson.
It was at this meeting that Van Winkle decided at least
tentatively to discharge Jones, as Van Winkle admitted.
Van Winkle then sent word for Woodford to direct Jones
to come to the office.
Jones came to the office about 9:45 a.m. and spoke to
Van Winkle in the presence of Vincent and Hansen. Van
Winkle began the interview by stating that in view of her
abusive language Respondent had no alternative but to
terminate her. He stated that he was sure she knew what
she had said. While she stated she knew what she had said,
Van Winkle did not mention any specific words nor did
Jones. Jones rather responded by asking what was she
supposed to do with the line running heavy, as it was, and
her machine malfunctioning. She said she could not stamp
the television frames because the foil was wrapping around
the rollers on her machine and that she had blown her
cork. Van Winkle responded that some days there was
more static in the foil than other days and repeated that
there was no alternative but to terminate her.22
the claimed kicking over of parts (I have found that Jones tripped over
them) in Hudson's report of the first incident to Woodford. Since the
claimed kicking over of parts occurred after Hudson spoke to Woodford,
Woodford could not have mentioned this to Van Winkle when he reported
to Van Winkle what Hudson had told Woodford.
22 These findings are based on the credible testimony of Jones in this
regard, as largely corroborated by Van Winkle. Van Winkle did not deny
that Jones asked him what could she do in the circumstances. I do not credit
Van Winkle's testimony that he told Jones on this occasion that further
reasons for her discharge were her throwing and kicking of parts, for Van
Winkle's versions of his reasons varied each time he testified. Thus, in the
unemployment compensation hearing he said she was fired for abusive
language and throwing parts. When first examined by the General Counsel,
he added kicking parts and, when examined by Respondent in its case-in-
chief, he added that Jones was fired for threatening to punch someone. He
testified to this last version in explaining what reasons he gave Jones' fellow
employees when they asked for an explanation of Jones' discharge that same
morning in an incident I will soon described. I have already discredited Van
Winkle's testimony that Woodford told Van Winkle about Jones' alleged
kicking of parts-information which Woodford could not have given Van
Winkle at the time because Woodford was not then in possession of it.
Hansen did not testify at all and Vincent did not testify about this interview.
1227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jones then left the office and returned to her work
station where she told her coworkers that she had been
fired.
Her coworkers promptly asked Garrett if he could
arrange for them to see Van Winkle. Garrett went and
arranged the meeting with Van Winkle. Either while so
doing - which was at a time after Jones' discharge - or
shortly after Garrett arranged the meeting which would
also have been after Jones' discharge, Garrett told Van
Winkle Garrett's version of the Jones' incidents of that
morning.23
Jones' coworkers went in to see Van Winkle and asked
him for an explanation of Jones' discharge. Present at this
meeting in addition to Van Winkle, Hansen, and Vincent
were Jones' fellow employees, Brenda Tucker, June Gray,
Betty Hardin, Betty Gardner, and "Chuck" (last name not
recalled). Van Winkle told those present that Jones had
been discharged for abusive language. When asked to
elaborate, he said that Jones called Hudson a "m- f-."
They replied that everyone cussed, but Van Winkle
rejoined that employees should show more respect for
group leaders. June Gray responded that she would hate to
think that she might come in, be upset, have her machine
malfunction, and then be fired after she said something.
Gray added that she felt that Jones was fired because of the
Union. Van Winkle responded by saying, "Whatever you
think," or "that's your opinion." The employees then asked
if Jones could be permitted to return to work, saying they
did not feel that it was right that Respondent fired her. Van
Winkle refused, saying he thought it was best that she be
terminated.24
The next day, November 25, Jones' mother, Anna Hunt,
telephoned Van Winkle at home. Hunt asked Van Winkle
why Jones had been fired. Van Winkle told Hunt that
Jones had been fired for calling her group leader an "a-
hole" and a "m -- f--" and that there must be more
respect for group leaders. Hunt then thanked Van Winkle
and hung up.25
During the week after Jones was discharged, her
machine, which had malfunctioned on November 24, was
modified by placing on it a bar or feeder by means of
which the foil is automatically controlled and no longer
gets caught in the rollers.
On January 12, 1977, Jones' unemployment compensa-
tion hearing was held before Melvin J. Fuelner, appeals
referee of the Indiana Employment Security Division.
On January 14, 1977, Fuelner issued his decision
upholding an earlier decision by a deputy, dated December
::' I do not credit Van Winkle's testimony that he spoke to Hudson and
Garrett before going to the personnel office and later discharging Jones. At
first. in the Board hearing, Van Winkle said he spoke only to Hudson at that
time. Later. Van Winkle added that he spoke to Garrett. In the
unemployment compensation hearing Van Winkle did not mention that he
spoke to Garrett before Jones' discharge. Garrett twice testified that he
spoke to Van Winkle when the coworkers went to see Van Winkle and that
this was about 10 o'clock. When pressed with leading questions by
Respondent's counsel on redirect. Garrett finally said he could not
remember whether he spoke to Van Winkle before or after Jones was fired. I
credit Garrett's earlier versions and do not credit his last.
eI These findings are based on the credible and corroborative testimony
oft Tucker. Gray, and Gardner, as further corroborated, in part, by Van
Winkle. I do not credit Van Winkle's testimony that he mentioned throwing
15, 1976, that Jones had been discharged by Respondent
for cause.
Jones has not returned to work for Respondent.
Concluding Findings
The discharge of Jones
The General Counsel has mounted a substantial prinma
facie case that Jones was discharged for her union
activities. Thus, Jones was an active union adherent,
having signed a card and attended union meetings and
having participated in all but one of the occasions where
the employees passed out union leaflets at Respondent's
plant in the spring and summer of 1976. Jones also wore
her union committeeperson's button at least as late as
September 1976 and, at times, was attired in a "Vote
UAW" T-shirt. She was a union observer at the August 26
election.
Jones' union feelings were well known to management.
Thus, her wearing of the union button and T-shirt at the
plant was obvious and, specifically, Ohning, an admitted
supervisor, saw her wearing the union button in September.
Vincent, Respondent's personnel manager, whom I have
found to be Respondent's agent, saw Jones passing out
leaflets in front of the plant on or about May 12 or 13.
Jones' participation as a union observer, at the election of
August 26, was recorded on the certification of the conduct
of that election.
Respondent's animus against the Union and particularly
the union activities of Jones was established on the basis of
several particulars. For example, Vincent threatened to
summon the police when Jones passed out leaflets on May
12 or 13. Daubs, Respondent's president, in discussing the
Union with Carroll in mid-May asked Carroll what
Respondent could do to keep those "f-- people out." In
late May, Van Winkle told Carroll that Carroll, an
employee, could be fired for supporting the Union. During
the aftermath of the June 18 "Eat beans" episode, Van
Winkle angrily claimed that Jones was cramming those
"g--" union handbills down employees' throats and
asked Jones what Jones' mother felt about Jones' union
activities. In September, Ohning - contrary to the law -
told Jones that she could not wear a union button.
Respondent in its brief defends that Jones was dis-
charged for cause, pointing to her abusive language to her
group leader, Tim Hudson, and her throwing of television
frames on the day of her discharge. Respondent has
apparently abandoned any defense based on the testimony
of Van Winkle (which I have discredited in any event) that
or kicking of parts or punching someone. Tucker specifically denied that
Van Winkle mentioned throwing of parts or punching someone. She
credibly testified that he only mentioned abusive language. Neither Gray
nor Gardner recalled any mention of throwing of parts. Van Winkle could
not have told Jones she was fired for threatening to punch someone because
he did not learn this from Garrett until Garrett spoke to Van Winkle, which.
as I have found, was after Jones was discharged. While Hudson spoke with
Van Winkle before Jones was discharged, there is no evidence that Garrett
told Hudson about Garrett's incident with Jones.
Vincent did not testify about this incident. Hansen did not testify at all
nor did "Chuck."
25 These findings are based on the credible testimony of Hunt as
corroborated by Van Winkle.
1228
WINDSOR PLASTICS, INC.
Jones was also discharged for kicking television frames and
threatening to punch someone on that same day.
My responsibility is to determine Respondent's true
motivation in discharging Jones. In all the circumstances, I
conclude that Jones was discharged because of her union
activities.
I shall first analyze Respondent's defense. As I have
already found, based on credibility resolutions, Van
Winkle told Jones' coworkers and Jones' mother, after
Jones' discharge, that Jones was terminated for using
abusive language to a group leader. While I will reject this
abusive language defense, Van Winkle's statements in this
respect constitute an admission that Jones was not
discharged for any other reason (e.g., throwing or kicking
television frames or for threatening to punch someone
[Garrett]). I so hold.2 6
Hence, Respondent's defense dwindles to the matter of
the abusive language.
Respondent can hardly assert that vulgar and profane
language is not tolerated at the plant. Both its president,
Daubs, and its plant manager, Van Winkle, use it in the
presence of employees, as I have already found (e.g.,
Daubs in May, Van Winkle on June 18). Hudson used it
during the incidents in question here on November 24
when he (initially) mismanaged the repair of Jones'
stamping machine. Beyond these instances, the record of
this proceeding is redolent with undisputed evidence of
numerous other occasions in which foul language was
employed at the plant. This is not unexpected, for a factory
operation is not a cotillion.
Nonetheless, Respondent argues that it cannot tolerate
the use of such language when directed at a group leader
who, although not a supervisor, is entitled to respect. I have
no quarrel with this contention provided employees are
uniformly disciplined for such a breach of etiquette; but
they are not.
Thus, one of the examples given in the record of
employee use of vulgar and abusive language occurred on
the very day of Jones' termination, November 24. In this
incident an inspector, Marcia Chittenden (nee Flamion)
was called a "m--f--" by a coworker, Stan Spradley,
who used still other profanities during an encounter when
Chittenden attempted to enlist Spradley's aid in handling
the heavy volume that day.27 Chittenden, while an
employee (as is a group leader) also occupies a position
entitled to some respect. She has the authority, among
other things, to shut down a line. Yet, Spradley, despite his
outrageous conduct toward Chittenden, was only written
up and counseled. Curiously, Chittenden was likewise
written up after admittedly reacting to Sradley by calling
him a "son of a b-." Neither was discharged.2 8
2' Even if I were required to reach the matter of Jones' throwing of parts,
I would likewise reject this defense. For I find that parts (television frames)
have on other occasions been thrown by employees at the plant. I find.
specifically on the basis of the credible testimony of Hardin. that a television
frame was thrown at her while the line was down a few days before Jones'
discharge. There is no showing that any employee was punished for this.
2
7 Chittenden. who is still employed, credibly so testified. Spradley did
not testify.
"Y In these circumstances I would reach my conclusion that Jones'
discharge for abusive language was pretextual, even if, contrary to my
credibility findings. Jones called Hudson a "m - f "or even if.
whatever was said, Van Winkle was told that Jones called Hudson a "m
I . ..1
The treatment of Spradley is consistent with Respon-
dent's disciplinary system, which is set forth in its
personnel manual.29 That is, an employee will not be
discharged except after written warning, signed by the
employee and the supervisor, and after being given an
opportunity to improve. If there is no improvement and the
matter recurs, the employee will be discharged. Van
Winkle admitted that notwithstanding what the manual
says, the first time an incident occurs merely an oral
warning is given. This means that the system really involves
three steps - and requires the occurrence of three
incidents - resulting in an oral warning, then a written
warning, then termination.
There is no showing that Jones was ever given an oral
warning. The only item arguably tantamount to a written
warning was a memorandum placed in Jones' file by Van
Winkle at some point after the "eat beans" incident to
which the memorandum referred. But if that memorandum
was intended as a warning, it was never shown to Jones
and, consequently, she never signed it. Indeed, the
confrontation between Jones and Van Winkle in respect to
that matter was requested Jy Jones, not management.
Moreover, that confrontation turned into a coercive,
inflammatory and entirely gratuitous interrogation by Van
Winkle of Jones' efforts in passing out leaflets to her fellow
employees and Van Winkle's inquiry into the reaction of
Jones' mother to Jones' union activities. The claimed
warning, therefore, did not involve a management counsel-
ing session, it did not conform to management's own rules
for written disciplinary warnings, and, lastly, it created an
occasion for an unlawful infringement by Van Winkle on
the Section 7 protected rights of Jones to engage in union
or other concerted activities.30
1, accordingly, conclude that Jones was given no valid
prior written warning about abusive language. Further, as I
have held, she did not use abusive language in that incident
other than to sea "eat beans" to Group Leader Scott
Hagan.
Perhaps anticipating the possibility that this memoran-
dum would not be found to be a written warning, Van
Winkle claimed in his testimony that Jones' conduct on
November 24 was "flagrantly improper personal conduct"
for which, under another provision of Respondent's
personnel manual, an employee may be discharged without
warning. However, if such language - calling an employee
with authority over other employees a "m-- f--"-
constitutes grounds for immediate discharge, why wasn't
Spradley discharged after an event occurring the same day
when Spradley called an inspector, Chittenden, by the
same name? Further, Hudson conceded at the unemploy-
ment compensation hearing that employees have previous-
29 G.C. Exh. 4.
30 In view of the settlement agreement in Cases 25-CA-8012 and 25
CA-8012-2 which, inter alia, resolved Respondent's claimed interrogations
during this period, (see the notice therein-G.C. Exh. 8) 1 make no unfair
labor practice findings as to this incident. I do, however, consider the nature
of Respondent's presettlement conduct for background against which I can
evaluate its conduct occurring after the settlement agreement. See Northern
California District Council of Hodcarriers and Common Lalorers of America,
AFL CIO, Construction and General Lajorers Union Local No. 185, AFL
CIO {Joseph's Landscaping Service], 154 NLRB 1384. fn. 1 (1965), enfd. 389
F.2d 721 (C.A. 9. 1969).
1229
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ly told him to "kiss my a-" yet, no other employee except
Jones has ever been discharged by Van Winkle (to Van
Winkle's knowledge) for abusive language to another
employee.
1, accordingly, conclude that Respondent seized upon
Jones' abusive language as a pretext upon which to
discharge her. In addition to the foregoing, Van Winkle's
whole course of conduct suggests a pretext. By his own
admission he pursued the Jones' incident after being told in
the report of it that it had been resolved. When Van Winkle
later that same morning confronted Jones who, Van
Winkle must have known from the report of the incident,
was upset, he started off his claimed inquiry into the
incident with the statement that he had no alternative but
to fire her. He never verified with her what she purportedly
said to Hudson. He did not take into consideration the fact
that Hudson and Jones were friends of some 3 years'
standing, although he admitted at the hearing that this
would be a consideration if he were called upon to
discipline an employee for abusive language to a fellow
employee. Nor could he have evaluated the fact that
Hudson is not offended by these words - as Hudson
testified he is not - which Van Winkle said he would
likewise take into consideration a case involving abusive
language among employees. Nor, unlike the Chittenden-
Spradley incident, was any action taken against Hudson
who also used abusive language in Jones' presence s3 and
who - with the abusive language, his failure to listen
properly to Jones' complaints and his (then) inability to fix
the machine, when it was sorely needed by Jones to keep
up with her work - was at least partially responsible for
provoking Jones' reaction.
1, accordingly, conclude that Jones was given disparate
treatment in Respondent's handling of the allegation that
she had used abusive language to a group leader. I further
conclude that this incident was used by Respondent as a
pretext to discharge Jones, where the true motivating cause
therefor was Respondent's animus against Jones' union
activities. I, accordingly, conclude that, in discharging
Jones and thereafter failing to reinstate her, Respondent
has violated, and is violating, Section 8(a)(1) and (3) of the
Act.32
The union button incident in September
I have found that Ohning told Jones sometime in
September that she could not wear a union button at the
plant. Since this event took place in September, it occurred
before the settlement agreement in Cases 25-CA-8012 and
25-CA 8012-2 was approved by the Regional Director on
:" In the first incident when Hudson failed to fix Jones' machine.
:2 I attach no weight to Van Winkle's self-serving testimony that he did
not discharge Jones for her union activities. See Shattuck Denn Mining
(Corporution (Iron King Branch) v. N. L. R. B., 362 F.2d 466, 470 (C.A. 9, 1966),
where the court stated:
A state of mind [actual motive] being the question, it is seldom that
direct evidence will be available that is not also self-serving. In such
cases, the self-serving declaration is not conclusive; the trier of fact may
infer motive from the total circumstances proved. Otherwise no person
accused of unlawful motive who took the stand and testified to a lawful
motive could be brought to book. Nor is the trier of fact --here the trial
examiner required to be any more naif than is a judge. [Footnote
omitted.l If he finds that the stated motive for discharge is false, he
October 4. The settlement agreement included a notice
which stated, inter alia, "We will not forbid our employees
from wearing union insignia at our facility." I conclude
that this notice was thereafter appropriately posted by
Respondent, because it was stipulated at the hearing that
Respondent satisfactorily complied with the terms of this
settlement agreement and that a letter of satisfactory
compliance was issued by the Regional Director on
December 21.
Significantly, in the present case, the General Counsel
does not 'contend that the settlement agreement should be
set aside nor that Respondent has breached the terms of
that agreement.
In all these circumstances, I conclude that this allegation
of the present complaint has already been fully resolved by
the settlement and the posted notice which was a part
thereof.
Inasmuch as this matter has already been resolved it may
not now form the basis of a finding of any separate
violation of the Act.33
I shall, accordingly, recommend that this allegation of
the complaint be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth above, occurring
in connection with its operations described in section I,
above, have a close, intimate, 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.
V. THE REMEDY
The recommended Order will contain the conventional
provisions for cases involving unlawful discrimination in
violation of Section 8(a)(3) and (I) of the Act. This will
require Respondent to cease and desist from the unfair
labor practices found and to post a notice to that effect
which will also state the affirmative action Respondent will
be required to take to remedy its unlawful discharge of
Melanie Jones. Thus, Respondent will be directed to offer
Jones reinstatement to her former position or, if such
position no longer exists, to a substantially equivalent
position without prejudice to her seniority or other rights
and privileges. She will be made whole for any loss of
earnings she may have suffered by reason of the discrimi-
nation against her by payment to her of a sum of money
equal to that which she would have earned from the date of
certainly can infer that there is another motive. More than that, he can
infer that the motive is one that the employer desires to conceal-an
unlawful motive-at least where, as in this case, the surrounding facts
tend to reinforce that inference.
In making this finding of violation, I am not unmindful of the contrary
decision of the Indiana Department of Employment Security, a copy of
which was received in evidence. However, that determination was based on
a different record with different testimony which did not include any
evidence of unfair labor practices. While I must evaluate the Indian decision
in the light of all the evidence, and have done so, that determination is not
binding upon me. See Supreme Dyeing & Finishing Corp. and Valley Maid
Co., Inc., 147 NLRB 1094 (1964), enfd. 340 F.2d 493 (C.A. I, 1965).
:" Jackson Manufacturing Company, 129 NLRB 460. 462 (1960).
1230
WINDSOR PLASTICS, INC.
her discharge to the date of her offer of reinstatement, less
net earnings, if any, to be computed in the manner
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), with 6 percent interest thereon as required by Isis
Plum ing & Heating Co., 138 NLRB 716 (1962).
It will be further recommended in view of the unfair
labor practices in which Respondent has engaged (see
N. LR.B. v. Entwistle Manufacturing Company, 120 F.2d
532, 536 (C.A. 4, 1941)) that Respondent be ordered to
cease and desist from infringing in any manner upon the
rights guaranteed employees by Section 7 of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By discharging Melanie Jones on November 24,
1976, and thereafter failing to reinstate her, because of her
union activities, Respondent has violated, and is violating,
Section 8(a)(l) and (3) of the Act.
4. The allegation of the complaint that Respondent
interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed by Section 7 of the Act by the
statement of second-shift superintendent, James Ohning, in
late September to Melanie Jones that she was not allowed
to wear a union campaign button is barred by the
settlement agreement in Cases 25-CA-8012 and 25-CA-
8012-2
5. The foregoing unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER 34
The Respondent, Windsor Plastics, Inc., Evansville,
Indiana, its officers, agents, successors, and assigns, shall;
1. Cease and desist from:
(a) Discouraging membership in, activities in behalf of,
or sympathies toward UAW International Union, United
:1" In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions. and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings, conclusions. and Order, and all objections thereto shall be
deemed waived for all purposes.
Automobile, Aerospace and Agricultural Implement
Workers of America or any other labor organization by
discriminating in regard to hire or tenure of employment or
in any other manner in regard to any term or condition of
employment of any of Respondent's employees in order to
discourage union membership, activities, or sympathies.
(b) In any other manner interfering with, restraining, or
coercing employees in the exercise of rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act.
(a) Offer Melanie Jones immediate and full reinstate-
ment to her former position or, if it no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges and make her whole
for any loss of earnings she may have suffered as the result
of her discriminatory discharge in the manner set forth in
the Remedy section of the Administrative Law Judge's
Decision herein.
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports and all other records
necessary to analyze the amount of backpay due under the
terms of this recommended Order.
(c) Post at its Evansville, Indiana, facility copies of the
attached notice marked "Appendix." 35 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's
representative, shall be posted immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that such notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS HEREBY FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges unfair labor
practices not found herein.
35 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
1231