American Crane Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1998

326 N.L.R.B. 1401 (N.L.R.B. 1998)

AMERICAN CRANE CORP. 1401
American Crane Corp. and International Brother-
hood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers & Helpers, AFL–CIO and
Cleatus L. Brown. Cases 11–CA–16292, 11–CA–
16583, 11–CA–16763, and 11–CA–17235
September 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
The issues presented here are whether the administra-
tive law judge correctly found that the Respondent com-
mitted several violations of Section 8(a)(1), (3), and (4)
of the Act.1 The Board has considered the decision and
the record in light of the exceptions, cross-exceptions,
and briefs, and has decided to affirm the judge’s rulings,
findings,2 and conclusions,3 except as discussed below.
We adopt the judge’s conclusion that the Respondent
unlawfully discharged employee Johnny Thompson and
unlawfully took several adverse personnel actions (other
than those discussed below) against employee Cleatus
Brown. We do not, however, pass on whether Thompson
violated company policy on “early-outs” on July 14,
1995. Because Thompson’s supervisor remained silent
when Thompson informed him that he was taking the
remainder of July 14 as a personal or vacation day, we
find that the supervisor impliedly gave Thompson per-
mission to leave. In addition, we do not agree with the
judge that the comment Brown made to Supervisor Inez
Crisp after Brown had clocked out on September 23,
1996, was “appropriate.” Neither do we find, however,
that Brown’s comment justified the discipline imposed.
In addition, the General Counsel has conceded the
merit of the Respondent’s exceptions to the judge’s find-
ings of 8(a)(3) violations for adverse employment actions
taken against Cleatus Brown in February 1996. In ac-
cord with the General Counsel and the Respondent, we
find that these actions took place outside the 10(b) limi-

tations period for the relevant charge filed in Case 11–
CA–17235. We reverse the judge’s finding of the viola-
tions at issue, and we shall delete all references to them
from the Order and notice.4
1 On June 24, 1997, Administrative Law Judge Howard I. Grossman
issued the attached decision. The Respondent filed exceptions and a
supporting brief. The Charging Party filed a brief in opposition. The
General Counsel filed cross-exceptions and an answering brief.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3rd Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
3 There are no exceptions to the judge’s unfair labor practice find-
ings discussed in sec. II,A,3–7 and sec. III,B of his decision.
Member Hurtgen does not agree that Supervisor Frank Moelter un-
lawfully interrogated employee Clemmons. Moelter simply told Fred
Clemmons that he had heard that Clemmons was going to organize a
union. Although the statement may arguably have created an
impression of surveillance, it did not constitute unlawful interrogation.

On March 24, 1998, the Board granted a joint motion
from the Respondent and the Charging Party Union to
withdraw the allegations of 8(a)(5) violations in this con-
solidated complaint proceeding. We shall therefore de-
lete all references to 8(a)(5) violations from the Order
and notice.5
ORDER
The National Labor Relations Board and orders that
the Respondent, American Crane Corp., Wilmington,
North Carolina, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees concerning
their union activities.
(b) Threatening employees with plant closure if the
employees select the Union as their bargaining represen-
tative.
(c) More closely monitoring the work and movement
of its employees because of their union activities.
(d) Disparately enforcing a no-solicitation, no-distri-
bution rule in order to discourage the union activities of
its employees.
(e) Threatening employees with denial of reinstate-
ment from suspension because they filed unfair labor
practice charges with the Board.
(f) Transferring employees to different job assign-
ments in order to isolate them from other employees and
discourage their support for the Union.
(g) Telling employees that the reason for a new $5
charge for lost I.D. cards was to keep “undesirables” out
of the plant.
(h) Discouraging membership in the International
Brotherhood of Boilermakers, Iron Ship Builders, Black-
smith, Forgers & Helpers, AFL–CIO or any other labor
organization by discharging employees because of their
union or other protected, concerted activity, or by dis-
criminating against them in any other manner with re-
spect to their wages, hours, tenure of employment, or any
other terms and conditions of employment.

4 We find merit in the General Counsel’s cross-exceptions to the
judge’s failure to recommend remedial language for the 8(a)(4) viola-
tions that he found. We shall include appropriate language in our Order
and notice.
Contrary to the judge and his colleagues, Member Hurtgen does not
find that Supervisor Crisp’s July 1996 statement to employee Cleatus
Brown regarding a subpoena is sufficient to establish that discipline
later imposed on Brown violates Sec. 8(a) (4). The statement is am-
biguous and (at most) shows antiunion animus. It does not establish
that Respondent was hostile to the giving of testimony in Board pro-
ceedings.
5 The withdrawal of all 8(a)(5) allegations also moots the Respon-
dent’s exception to the judge’s procedural ruling granting a motion to
quash a subpoena duces tecum.
326 NLRB No. 153
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1402
(i) Issuing discipline in retaliation for employees pro-
viding testimony to the Board.
(j) In any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service from the date of this
Order, offer Fred Clemmons and Johnny Thompson rein-
statement to their former positions or, if those positions
no longer exist, to substantially equivalent positions,
dismissing if necessary any employee hired to fill the
positions.
(b) Make Fred Clemmons and Johnny Thompson for
any loss of earnings and other benefits suffered as a re-
sult of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(c) Make Zachary Givens whole for any loss of earn-
ing he may have suffered by reason of our unlawful sus-
pension of him on October 17, 1994.
(d) Within 14 days after service from the date of this
Order, remove from its files any and all references to the
unlawful discharges of Fred Clemmons and Johnny
Thompson, the unlawful suspension of Zachary Givens,
and the unlawful warnings to Clemmons, Thompson, and
Cleatus Brown, and within 3 days thereafter notify them
in writing that this has been done and that this action will
not be used against them in any way.
(e) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(f) Within 14 days after service by the Region, post at
its Wilmington, North Carolina facility, copies of the
attached notice marked “Appendix.”6 Copies of the no-
tice, on forms provided by the Regional Director for Re-
gion 11, after being signed by the Respondent’s author-
ized representative, shall be posted by the Respondent
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the
event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facil-
ity involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the no-
tice to all current employees and former employees em-

6 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
ployed by the Respondent at any time since August 30,
1994.
(g) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT coercively interrogate employees con-
cerning their union activities.
WE WILL NOT threaten employees with plant closure if
they select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT more closely monitor the work and
movement of our employees because of their union ac-
tivities.
WE WILL NOT disparately enforce a no-solicitation, no-
distribution rule in order to discourage union activities of
our employees.
WE WILL NOT threaten employees with denial of rein-
statement from suspension because they filed unfair la-
bor practice charges with the Board.
WE WILL NOT transfer employees to different job as-
signments in order to isolate them from other employees
and discourage their support for the Union.
WE WILL NOT tell employees that the reason for a new
$5 charge for lost I.D. cards is to keep “undesirables” out
of the plant.
WE WILL NOT discourage membership in the Interna-
tional Brotherhood of Boilermakers, Iron Ship Builders,
Blacksmiths, Forgers, & Helpers, AFL–CIO or any other
labor organization, by discriminating against them in any
way.
WE WILL NOT issue discipline to employees in retalia-
tion for their providing testimony to the Board.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of their
rights guaranteed by the Act.
AMERICAN CRANE CORP. 1403
WE WILL offer Fred Clemmons and Johnny Thompson
reinstatement to their former jobs.
WE WILL make Fred Clemmons and Johnny Thompson
whole for any loss of earnings and other benefits result-
ing from their discharge, less any net interim earnings,
plus interest.
WE WILL make Zachary Givens whole, with interest,
for any loss of earning he may have suffered by reason of
our unlawful suspension of him on October 17, 1994.
WE WILL remove from our records all references to our
discharges of Fred Clemmons and Johnny Thompson,
our suspension and transfer of Zachary Givens, and our
unlawful warnings to Clemmons, Thompson, and Cleatus
Brown, and inform them in writing that this has been
done and that these actions will not be used as the basis
of any future discipline of them.

AMERICAN CRANE CORP.

Jane P. North, Esq., for the General Counsel.
Spencer Youell, Esq., James S. Mowery, Esq., and Gary Reeve,
Esq. (Mowery & Youell), of Columbus, Ohio, for the Re-
spondent.
Dana K. Apple, Esq. (Blake & Uhlig), of Kansas City, Kansas,
Mr. Thomas W. Chastain, International Representative, of
Copperhill, Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. Ameri-
can Crane Corporation (Respondent or the Company) has de-
nied knowledge of the filing and service of the charges herein.
These denials mandate a recital of the evidence on these issues.
The record includes an original charge in Case 11–CA–
16292 filed by on November 18, 1994,1 by the International
Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,
Forgers & Helpers, AFL–CIO (the Union) and an amended
charge on December 28, 1994, alleging that Respondent com-
mitted substantially all of the unfair labor practices litigated in
this proceeding. Included with the original charge is a transmit-
tal letter, and an affidavit of service of the charge by certified
mail addressed to Respondent, dated November 18. Attached
to the original charge is a postal receipt card showing delivery
to Respondent on November 21, 1994.2
Included with the amended charge is a transmittal letter and
an affidavit of service of the amended charge by certified mail
to Respondent, dated December 28. Attached to the amended
charge is a postal receipt card showing delivery to Respondent
on December 30, 1994.3
The record includes copies of the original charge and an
amended charge in Case 11–CA–16583 filed on June 16 and
September 26, 1995, respectively. Included with the original
charge is a transmittal and an affidavit of service of the original
charge on Respondent by certified mail on June 16, 1995. Also
attached is a postal receipt card showing delivery to Respon-
dent on June 19, 1995.4 Attached to the amended charge is an

1 All dates are in 1994 unless otherwise indicated.
2 G.C. Exh. 1(a).
3 G.C. Exh. 1(c).
4 G.C. Exh. 1(l).
affidavit of service dated September 26, 1995, affirming that a
copy of the amended charge was served on Respondent by
certified mail on September 26, 1995.5 The original and
amended charges in Case 11–CA–16583 allege additional un-
fair labor practices which were litigated in this proceeding.
The record includes a copy of the original and amended
charges in Case 11–CA–16763, filed on November 6, 1995,
and April 2, 1996, respectively.6 Included with the original
charge is an affidavit of service by certified mail on the Re-
spondent on November 6, 1995, and a transmittal letter. Also
attached is a postal receipt card showing delivery to Respon-
dent on November 10, 1995.7 Included with the amended
charge is an affidavit of service by certified mail on Respon-
dent, dated April 2, 1996.8 The charges allege unfair labor
practice litigated at the hearing.
The original and amended charges in Case 11–CA–17235
were filed on October 23 and November 26, 1996, respec-
tively.9 The record includes affidavits of service of the charges
upon Respondent by certified mail on the same dates as the
filing.10
Various complaints and consolidated complaints issued pur-
suant to these charges, in particular a second consolidated com-
plaint in the first three cases cited above, on April 4, 1996, and,
on November 29, 1996, a complaint in Case 11–CA–17235.
These complaints allege some of the unfair labor practices as-
serted in the charges. Respondent appeared and litigated these
allegations. I conclude that the charges were filed and served
on Respondent on the various dates indicated.
On December 16, 1996, the General Counsel moved to con-
solidate Case 11–CA–17235 with the first three cases during a
hearing then in progress. The motion was granted.
The pleadings establish that the Union was certified by the
Board as the representative of the employees pursuant to an
election on October 12, 1994. The complaint alleges that Re-
spondent committed various unfair labor practices. I held a
hearing on these matters on July 16–18, September 17–20, and
December 16 and 17, 1996, in Wilmington, North Carolina.
Thereafter the General Counsel, Respondent, and the Charging
Union filed briefs.
On the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a North Carolina corporation with a manufac-
turing facility at Wilmington, North Carolina, where it is en-
gaged in the manufacturing of cranes and parts used in the con-
struction of cranes. During both of the 12-month periods pre-
ceding issuance of the second amended complaint in the first
three cases cited above and Case 11–CA–17235, Respondent
purchased and received at its Wilmington, North Carolina facil-
ity goods and materials valued in excess of $50,000 directly
from points outside the State of North Carolina, and sold and
shipped from the facility goods and materials of the same
valuation during the same period to points outside the State of
5 G.C. Exh. 1(n).
6 G.C. Exhs. 1(w), 1(y).
7 G.C. Exh 1(x).
8 G.C. Exh.1(z).
9 G.C. Exhs 1(a), 1(c) (Case 11–CA–17235).
10 G.C. Exhs. 1(b), 1(d) (Case 11–CA–17235).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1404
North Carolina. Respondent is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. ALLEGED VIOLATIONS OF SECTION 8(A)(1)
A. The Alleged Unlawful Interrogation
1. Background—the 1994 union campaign
The complaints allege that Respondent unlawfully interro-
gated its employees concerning their Union activities. In mid-
August 1994, the employees designated toolroom employee
Freddie Clemmons to contact the Union on their behalf.
Clemmons did so, and received union cards, literature, and
stickers. On the Tuesday following Labor Day, Clemmons
secured 40 to 50 signed cards from employees, some in the
presence of supervisors. Clemmons wore a large union button,
the only button of comparable size, until his discharge.
2. The alleged interrogation
a. The evidence
Clemmons testified without contradiction that, in the week
before Labor Day, prior to his activities described above, Frank
Moelter approached him in the toolroom and said that he had
heard that Clemmons was going to organize the Union. Moel-
ter was an admitted supervisor. Clemmons replied that he had
not yet decided. Clemmons was a credible witness, and I ac-
cept his testimony.
Employee Cleatus Brown testified without contradiction that,
during the union campaign, Jack Yow asked him in the bath-
room where his union button was. Brown, who had not yet
worn a union button, replied that this was none of Yow’s busi-
ness. Brown was credible and I accept his testimony. Respon-
dent’s answer denies that Yow was a supervisor. Nonetheless,
Respondent stipulated at the hearing that Yow had been a su-
pervisor prior to the union campaign, but during the campaign
supervised only one employee. However, a finding of supervi-
sory status may be based on supervision of only one employee.
Jack Holland & Son, Inc., 237 NLRB 263, 265 (1978). Re-
spondent’s records show that Yow approved employee absence
of work requests, with a designated title as “supervisor,”11 and
signed performance reviews and evaluations of employees with
the same title.12 Cleatus Brown testified that Yow told him to
correct his bills of lading at times, and employee William Bry-
ant testified that Yow told employees how to load trucks. I
conclude that Yow was a supervisor.
b. Legal conclusions
In an early statement of the principles to be applied in such
cases, the Board stated:

In our view, the test is whether, under all the circumstances,
the interrogation reasonably tends to restrain or interfere with
the employees in the exercise of rights guaranteed by the Act.
The fact that employees gave false answers when questioned,
although relevant, is not controlling. The Respondent com-
municated its purpose in questioning the employees—a pur-
pose which was legitimate in nature—to the employees and
assured them that no reprisal would take place. Moreover, the

11 G.C. Exhs. 46–49.
12 G.C. Exhs. 51, 52.
questioning occurred in a background free of employer hostil-
ity to union organization. These circumstances convince us
that the Respondent’s interrogation did not reasonably lead
the employees to believe that economic reprisal might be vis-
ited upon them by Respondent. [Blue Flash Express, 109
NLRB 591, 593 (1954).]

The Board distinguished its decision in Blue Flash from a con-
trary holding, in which the interrogation took place a week
before a Board election, and the employer failed to give the
employees any legitimate reason for the interrogation or assur-
ances against reprisal (id.).
The Board reiterated this standard in Rossmore House, 269
NLRB 1176 (1984), where it rejected a per se approach to in-
terrogation of open union adherents and concluded that the test
was whether, under all of the circumstances, the interrogation
reasonably tends to interfere with, restrain, or coerce, employ-
ees in the exercise of rights guaranteed by the Act (id., 269 at
1177). The Board stated some of the factors to be considered:

Some factors which may be considered in analyzing interro-
gations are: (1) the background; (2) the nature of the informa-
tion sought; (3) the identity of the questioner, and (4) the place
and method of interrogation. See Bourne v. NLRB, 332 F.2d
47 (2d Cir. 1964). These other relevant factors are not to be
mechanically applied in each case. Rather, they represent
some areas of inquiry that may be applied in applying the
Blue Flash test of whether under all the circumstances the in-
terrogation reasonably tends to restrain, coerce, or interfere
with rights guaranteed by the Act. [Id., 269 NLRB at 1178 fn.
20.]

The Board has concluded that interrogation of a known un-
ion adherent’s union sympathies was coercive. Baptist Medical
System, 288 NLRB 882 (1988). In Sunnyvale Medical Clinic,
277 NLRB 1217 (1985), the Board applied the same test to
interrogation of employees who were not open union adherents.
The Court of Appeals for the Fifth Circuit recently affirmed a
Board finding of coercive interrogation because of the em-
ployer’s promulgation of an illegal rule, and a history of at-
tempting to engage in the same practice in the past. NLRB v.
Brookshire Grocery Co., 919 F.2d 359 (5th Cir. 1990), enfd. in
part 294 NLRB 462 (1989).13
Respondent argues that the actions of Moelter and Yow did
not constitute unlawful interrogation. In both cases, the em-
ployee did not testify that he felt compelled to answer the su-
pervisor and the latter failed to ask the employee’s “stance” on
the Union. The interrogation did not take place in an intimidat-
ing setting, and no other employee was shown to have heard
it.14
These arguments are not persuasive. There is nothing in the
criteria cited about requiring a compulsory answer from the
13 Citing Bourne, supra, the court listed eight factors to be consid-
ered in determing whether interrogation has been coercive: (1) the
history of the employer’s attitude toward its employees; (2) the nature
of the information sought or related; (3) the rank of the questioner in
the employer’s hierachy; (4) the place and manner of the conversation;
(5) the truthfulness of the employee’s response; (6) whether the em-
ployer had a valid purpose in obtaining the information sought; and (7)
whether a valid purpose, if existent, was communicated to the em-
ployee that no reprisals would be forthcoming. Although some of these
factors were not satisfied, the court in NLRB v. Brookshire Grocery,
supra, agreed with the Board that the interrogation had been coercive.
14 R. Br. 6, 7.
AMERICAN CRANE CORP. 1405
employee. The test is the nature and timing of the interroga-
tion. It took place just before the beginning of a union cam-
paign in Moelter’s case, and during the campaign in Yow’s. As
set forth hereinafter, the Company committed numerous unfair
labor practices. These included discrimination against both
Clemmons and Brown, and, in Clemmons’ case, his unlawful
discharge. No reason was given for the questions, and there
was no assurance of a lack of reprisal.
The Board has recently considered a case with similarities to
the case at bar. In Stoody Co., 320 NLRB 18 (1995), as here,
the employer committed numerous unfair labor practices.
There was no apparent purpose for the questions, nor were any
assurances given that the employee did not have to answer or
that his job was not endangered. The questioning was done by
the employer’s production manager, a higher ranking supervi-
sor than the supervisors in this case, and took place in his of-
fice. On the other hand, the violations in Stoody consisted only
of transgressions of Section 8(a)(1), whereas here the Respon-
dent committed a wider variety of unlawful acts, including
discrimination against the employees who were interrogated.
I conclude that the circumstances in this case were at least as
coercive as they were in Stoody, and that they meet the criteria
set out in Rossmore House and Bourne. Accordingly, I con-
clude that Respondent, by the questions of Moelter and Yow,
violated Section 8(a)(1).
3. The threat of plant closure
a. The evidence
The complaint alleges that Respondent threatened its em-
ployees with closure of its Wilmington facility if they selected
the union as their bargaining representative.
Fred Clemmons testified that, subsequent to the time he en-
gaged in union activity, on September 6, Supervisor Moelter
came to him and said that he had to sell his boat for $10,000.
The reason, Moelter stated, was that if the Union came in the
plant would shut down, and Moelter would need the money.
Moelter was on vacation at the time, according to Clemmons.
Moelter agreed that he had a conversation about his boat
with Clemmons. It took place in late August or early Septem-
ber. Moelter and Clemmons were in the toolroom “to look up a
tool.” Moelter asked Clemmons if he knew anybody that
wanted to buy a boat. Clemmons asked the reason. Moelter
replied that he had arrangements to be married, and that his
intended wife did not like the water. Accordingly, there was no
reason to leave the boat in the yard, and he might as well sell it
and put the money in the bank. Moelter further affirmed that he
did get married. Moelter denied that he ever threatened any
employee with closure of Respondent’s facility.
b. Factual and legal conclusions
Clemmons’ demeanor throughout his testimony in this case
indicates that he was a more truthful witness than Moelter. The
latter’s statements during these events manifest antiunion ani-
mus. Moelter’s testimony corroborates Clemmons’ to the ex-
tent that Moelter admits there was a conversation about a boat.
I credit Clemmons’ averments as to the nature of that conversa-
tion.
Respondent argues that the statement was not coercive, be-
cause no other employees were present.15 This argument has
no merit, as numerous Board cases attest. Moelter’s statement

15 R. Br. 8.
that the plant would shut down if the Union came in was coer-
cive under established Board law. I conclude that Respondent
thereby violated Section 8(a)(1).
4. The increased monitoring of union activities
a. The evidence
The complaint alleges that Respondent more closely moni-
tored the work and movement of its employees because of their
union activities.
Clemmons’ assigned work area was the toolroom. Employ-
ees would come there and request tools. He testified that, prior
to his distribution of union literature on September 6, Moelter
spent about 95 percent of his time in the boring mill, more than
100 yards from the toolroom. After Clemmons’ distribution of
union literature, Moelter would be at the door of the toolroom
as employees approached, and stand there “with a stiff jaw just
glaring” at Clemmons. He was there 95 percent of the time
until Clemmons was discharged. David Porter, a former em-
ployee, testified that, during the union campaign, Moelter was
near the toolroom twice as many times as he was previously.
Moelter testified that he moved throughout the plant, and
passed the toolroom in doing so. In September, he observed
employees talking with attendants in the toolroom. He ap-
proached these employees, and asked them what they were
waiting for. In 99 percent of the cases, the employees would
disperse without saying anything. Moelter estimated that his
supervision of the toolroom was about the same in September
as it had been previously. “The only thing was that when I
would see more people standing up there than normal, I would
walk up and see what was going on. My job is to keep the
people at their machines, not standing at the tool crib window.”
b. Factual and legal conclusions
The testimony of Clemmons, corroborated by Porter, and
partially admitted by Moelter, establishes that the latter was at
Clemmons’ work station a significantly greater amount of time
after the union campaign began. He stood and watched em-
ployees at the toolroom, and even approached them to ask them
what they wanted. Moelter knew that there was a union cam-
paign, and that Clemmons wore a union button.
In Stoughton Trailers, Inc., 234 NLRB 1203 (1978), the
plant manager ordered supervisors to ascertain whether em-
ployees were talking about the union on company time, and to
direct them not to engage in such activity. In addition, the plant
manager was in the prounion employee’s work area more often
than he had been prior to his knowledge of the employee’s
organizational activities. The Board affirmed the administra-
tive law judge’s conclusion that this constituted unlawful sur-
veillance. The Board reached a similar conclusion regarding
surveillance of union activity in the workplace in Lyman Steel
Co., 249 NLRB 296, 302–303 (1980), and in Intermedics, Inc.,
262 NLRB 1407 (1982), enfd. 715 F.2d 1022 (5th Cir. 1983).
In the latter case the administrative law judge found that super-
visors engaged in “spying on employees during their breaks,
(closely) watching employees while they were working” (id.,
262 NLRB at 1414). He noted that the supervisors “com-
menced to engage in a typical behavior, characterized by inten-
sive and highly conspicuous surveillance of employees’ activity
immediately upon learning of the organizational campaign” (id.
at 1515). The Board concurred that this was unlawful, and the
Court of Appeals for the Fifth Circuit specifically agreed (715
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1406
F.2d at 1025). The Board reached a similar conclusion in K-
Mart Corp., 255 NLRB 922, 924 (1981).
Respondent argues that “enhanced surveillance of employees
at the workplace that happens to coincide with union organizing
activity is not unlawful if it is for legitimate business reasons
concerning productivity,” citing Lechmere, 295 NLRB 92
(1989).16 In that case the employer installed rooftop cameras.
There was conflicting testimony regarding the purpose of the
cameras, including testimony that it was to enable security
people to follow a shoplifter. The administrative law judge,
“although not free from doubt,” and relying on the employer’s
testimony that the cameras were not out of the ordinary com-
pared with its use of cameras in its other stores, decided that the
installation did not violate Section 8(a)(1).
There is no security reason advanced in this case for Moel-
ter’s increased surveillance of Clemmons. After acquiring
knowledge of Clemmons’ union activities, Moelter simply
engaged in watching Clemmons as in the cases cited above. I
conclude that he engaged in increased monitoring of Clem-
mons’ union activities, and violated Section 8(a)(1).
5. The disparate enforcement of a no-solicitation, no-
distribution rule
a. The evidence
Respondent had a rule reading as follows:

Employees are not permitted to engage in solicitation of any
kind or the distribution of literature during his/her working
time or the working time of any other employee. Distribution
of literature is not permitted in the working areas of the plant
at any time. The only exception is the annual solicitation for
the United Way. For purpose [sic] of this rule, working time
does not include break periods, meal times, or other specified
periods during the day when employees are properly not en-
gaged in performing their work tasks. Violations of this rule
subjects [sic] the employee to discharge.17

Despite this rule, the employees engaged in a wide variety of
activities which violated its provisions, both before and during
the union campaign. These activities included sales of lunches,
candy bars, and raffles of tickets to various events. These ac-
tivities went on openly, during both worktime and breaktime.
Employees discussed a wide variety of subjects during working
time. Although Human Resource Manager Carol Davis told
employee David Porter to take down a flyer advertising the sale
of a church dinner, Supervisor Moelter testified that the sale of
lunches continued in September and October. Porter was not
given any discipline for his actions.
Cleatus Brown and William Bryant testified that Inez Crisp,
an admitted supervisor, told a group of employees that nobody
was supposed to solicit votes for the Union on company time.
Brown averred that this took place 1 week before the election,
and that Crisp said that any employee talking about the Union
on company time would be suspended. I credit this testimony.
On September 30 Zachary Givens was given a “counseling
action” by Supervisor Crisp for discussing the Union on com-
pany time. Further violations would lead to more stringent
discipline. Givens wrote a denial of the discipline stating that it

16 R. Br. 9.
17 Jt. Exh. 1, pp. 19–20.
was a result of the Company’s position on the Union, and de-
livered it to Human Resource Manager Carol Davis.18
b. Factual and legal conclusions
The complaint alleges disparate enforcement of the rule, not
its facial validity or invalidity. Accordingly, I need not pass on
the latter issue. Crisp’s statement to the employees and the
discipline administered to Givens, coupled with Respondent’s
failure to deter other violations of the rule, show that it was
disparately enforced so as to apply only to union activities. As
such, it violated Section 8(a)(1) of the Act. Our Way, 268
NLRB 394 (1983).19
6. The threat of denial of reinstatement following suspension
because the filing of unfair labor practices charges
a. The evidence
Fred Clemmons was discharged over an altercation which
took place with another employee on September 28. On Sep-
tember 30, Clemmons was given a counseling action and was
suspended pending investigation of the incident.20 On the same
day, September 30, the Union filed an unfair labor practice
charge alleging that the suspension was unlawful. The date
stamp shows that it was received by Respondent on October
4.21
Clemmons testified that he called Human Resources Man-
ager Carol Davis the next day, October 5. Davis is an admitted
supervisor. Clemmons asked whether he could return to work.
Davis replied that since Clemmons had filed charges against the
Company, he could not come back to work until after the elec-
tion (on October 12) if at all.
Davis testified that she did not threaten Clemmons on Octo-
ber 5 with a denial of reinstatement. She neither affirmed nor
denied that she had a conversation with him.
b. Factual and legal conclusions
Respondent argues that it would have been “illogical” for
Davis to have made the statement attributed to her, since an
investigation was pending on whether Clemmons would be
discharged. However, although Davis denied threatening
Clemmons, she did not deny having a conversation with him.
Accordingly, Clemmons’ testimony that a conversation took
place is unrebutted. Clemmons’ demeanor was that of a more
truthful witness than Davis. I credit his testimony attributing to
Davis the statement that because he had filed a charge, he could
not be reinstated until after the election, if at all. I further con-
clude that this statement was coercive and violated Section
8(a)(1).
7. The alleged transfer of employees in order to isolate them
and discourage their support for the Union
a. The evidence
Zachary Givens testified that his job prior to early October
was to deliver and retrieve parts all over the plant. On October
7, about a week before the election, Supervisor Inez Crisp
18 G.C. Exh. 11.
19 The discriminatory aspect of the rule as applied to Givens is con-
sidered, infra.
20 G.C. Exhs. 2, 3. Although the documents indicate that they were
executed on October 3, I credit Clemmons’ testimony that this took
place on September 30, 2 days after the incident.
21 G.C. Exh. 56.
AMERICAN CRANE CORP. 1407
transferred him to the shipping department. He remained there
until he was laid off on November 3. Givens affirmed that his
contact with other employees was minimal in the shipping de-
partment, compared to his prior job.
Givens stated that William Bryant used to be a group leader
in the shipping department. Other employees who worked in
the department with more experience than Givens were Cleatus
Brown, Pat Rhodes, and Patricia Pearson. Another employee,
Willie Armstrong, was sick, but was there some of the time
after Givens’ transfer. Crisp told Givens that somebody else
would take of care of his prior duties, and that there was no
reason for him to leave the shipping area. Givens affirmed that
he was not given any reason for the transfer.
Crisp testified that the Company was building a “prototype
machine,” and that her supervisor asked her for one employee
to assist in this work. She selected William Bryant. Crisp testi-
fied initially that this left her with Willie Armstrong, who was
sick and ultimately died of cancer. Crisp contended that she
selected Givens to replace Bryant because he was “the person
she would pull when she needed help for Willie.” On cross-
examination, Crisp testified that, subsequent to Bryant’s trans-
fer, she had “different people constantly” (in shipping). I might
have one person . . . today and I might have another person the
next day.”
Asked to compare Givens’ pretransfer and posttransfer jobs,
Crisp testified initially that when Givens was in shipping, he
had little need to go other places, except in a few specific in-
stances. However, Crisp also contended that there was not
much difference between the jobs in terms of the areas to be
visited.
b. Factual and legal conclusions
Givens’ testimony that various people worked in the ship-
ping department was confirmed by Crisp on cross-examination.
Her contradictory testimony on this issue does not inspire con-
fidence in her assertion, contradicted by Givens, that he was the
one she would “pull” to help Armstrong. I credit Givens’ tes-
timony that he had done less work in the shipping department
than the other individuals named. I also credit his unrebutted
testimony that Crisp gave him no reason for the transfer.
These factors undercut Crisp’s asserted reasons for the trans-
fer, i.e., the need to assist the ailing Armstrong. On Crisp’s
own testimony she could have selected somebody else.
I also credit Givens’ testimony that his contact with other
employees while in the shipping job was minimal compared to
the prior job. Here again Crisp’s testimony was contradic-
tory—a statement substantially agreeing with Givens was cou-
pled with an equivocation.
Givens’ transfer took place a few days after Crisp gave him a
warning for talking about the Union, and a few days before the
Union election. He was given no reason for the transfer. In
similar circumstances the Board has concluded that the em-
ployer was “seeking to take (the employee) out of circulation
and to isolate him from other employees because of his union
activities.” Montgomery Ward, 290 NLRB 981 (1988).
Based on the timing of the transfer, the failure to give Givens
any reason for it, Givens’ known support of the Union and his
prior warning, the vagaries of Crisp’s asserted business reasons,
and the fact that Givens’ demeanor was that of a more credible
witness than Crisp, I conclude that the transfer was to isolate
Givens from other employees because of his union activities.
Respondent thereby violated Section 8(a)(1).22
B. The Alleged Restriction on Employees Entering the Plant in
Order to Discourage Union Activities
This alleged violation of Section 8(a)(1) is contained in Sec-
tion 8(g) of the complaint. Section 8(e) alleges violation of
Section 8(a)(5) and (1) by the Respondent’s imposition of a
fine for employee loss of identification badges, together with a
comment by Supervisor Moelter. I shall consider these allega-
tions together in a discussion of alleged 8(a)(5) violations.
III. THE ALLEGED DISCRIMINATION
A. Fred Clemmons
1. The allegation and Clemmons’ union activities
The complaint alleges that Respondent gave Clemmons a
warning on October 7, 1994, a suspension on September 30,
and discharged him on October 7, 1994, because of his union
and other protected activities, in violation of Section 8(a)(3)
and (1).
Clemmons was hired in October 1987, suspended on October
3, 1994, and discharged on October 7, for “verbal threats to-
wards another employee–late afternoon on 9–28–94.”23
As set forth above, Clemmons was the employees’ desig-
nated representative for contacting the Union, and obtained
signatures on numerous authorization cards. He wore a large
union button, and was unlawfully interrogated.
2. Clemmons altercation with Russel Luhm
a. The incidents in the bathroom
Clemmons testified that he entered the bathroom on Septem-
ber 28. As he was doing so, Russell Luhm was leaving the
bathroom.24
Clemmons testified that the bathroom was customarily dirty
and that he went to the “end stall.” The seat was down and
covered with urine. Clemmons did not attempt to raise it, and
urinated. When he emerged from the stall, Luhm had returned
to the bathroom. As Clemmons approached the sink, Luhm
came up to him to the point where Luhm’s chest was touching
Clemmons. Clemmons had to move his head back. Luhm said,
“Didn’t your mother teach you any manners and to be polite
about putting up the toilet seat?” According to Clemmons,
Luhm was gritting his teeth and leaning on Clemmons. Clem-
mons replied, “Get the fuck out of my face.” Luhm backed up,
looked at Clemmons’ union button, and said, “Bull.”
Clemmons and Luhm then left the bathroom. At the snack
machines, Luhm turned and said, “You better watch your back,
boy.” Clemmons replied, “What the hell did you say?” Luhm
repeated: “You better watch it, buddy, because the Company’s
got ways of dealing with people like you.” Clemmons replied,
“You’re trying to attempt me to kick your ass [sic], but I’m
not.” The two then “walked off.”
Luhm testified that he entered the bathroom to wash his
hands. The seats were normally dirty, and Luhm had to clean
them up before use. Clemmons was in a stall urinating, and the

22 The complaint alleges only that Sec. 8(a)(1) was violated.
23 G.C. Exhs. 2, 3, and 6.
24 Luhm testified that he “was in charge of scheduling in the machine
shop, supervisor.” On cross-examination he denied he supervised other
employees.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1408
seat was down. When Clemmons came out, Luhm said, “Fred,
in the future we would appreciate it if you’d lift up the toilet
seat as others don’t care to wipe up after you and it’s very un-
healthy.” Clemmons replied that “somebody else” did it. Luhm
said that he was sure Clemmons’ mother taught him better.
This “irritated” Clemmons.
They left the bathroom, and Luhm turned to go to his office.
Clemmons “hollered” at him: “You bastard, I’m going to take
care of you.” Luhm replied, according to his testimony, “Fred,
the Company will take care of people like you.”
Luhm testified that he then went to his office, and remained
for 10 or 15 minutes. He did not relate any of these events to a
supervisor.
b. The incident by the railroad track
A railroad track runs through the plant, and Clemmons had
to cross it to get back to his work area. Clemmons was cross-
ing the track when Luhm appeared and “picked up speed.”
Clemmons slowed down, and Luhm went past him so rapidly
that Clemmons could “feel the wind off” Luhm. Clemmons
asked: “What the hell is your problem.”
Luhm stated that he left his office to go to the inspection area
about 10 to 15 minutes after returning from the bathroom. He
did not know where Clemmons was during this period, but saw
him crossing the track. Their paths converged, and Clemmons
said, “Don’t ever say anything about my mother again.” Luhm
replied that the point was to lift the toilet seat. Clemmons then
started “hollering and swearing” at him. Supervisor Moelter
asked Luhm to prepare a statement about 5 days later. Luhm
agreed that this statement does not contain anything about
Clemmons hollering or swearing.25 Nonetheless, Luhm testi-
fied that it took place.
c. The incident by the toolroom
Clemmons returned to the toolroom, where tool cutter John
Hewitt was present. Luhm came back toward the railroad
track, paused, had a clenched fist and started “mouthing” some-
thing which Clemmons could not hear because of the noise the
machines made. Hewitt testified and corroborated Clemmons.
The latter said to Luhm, “Man, if you keep on, you’re going to
cause me to kick your ass.”
Luhm asserted that, as he was returning to his office and
passed the toolroom, Clemmons was standing on a chair in the
toolroom flashing a light at Luhm. When Clemmons got
Luhm’s attention, he started “hollering and swearing” at Luhm.
The latter put Clemmons’ statements “out of his mind.”
Luhm’s statement prepared at Supervisor Moelter’s request
states that Clemmons was hollering at him from the toolroom,
but says nothing about a flashing light.26 Clemmons testified
that the only light in the toolroom was a hanging light which he
did not touch. There was no flashlight or lantern. Luhm re-
turned to his office, and Supervisor Moelter came there later.
3. Clemmons’ complaint to Supervisor Moelter and the latters
actions
Clemmons told Hewitt that he was going to report these mat-
ters to Supervisor Moelter, “to get that man off my ass.” He
found Moelter a short distance from the toolroom, talking with
employees Alan Kelly and Gerald Ballard. Clemmons told
Moelter: “If you don’t get Russ off my back, I’m going to have

25 R. Exh. 21.
26 R. Exh. 21.
to knock him on his ass.” Moelter gave slightly different ver-
sions of this statement. Moelter told Clemmons that there was
nothing that he, Moelter, could do about it, and advised Clem-
mons to see Luhm’s supervisor, whom Moelter identified as
Steve Green. Steve Carney was actually Luhm’s supervisor.
Alan Kelly corroborated Clemmons as to Moelter’s response.
Clemmons tried to reach Steve Green on the telephone, without
success.
Moelter, however contended that he told Clemmons that he,
Moelter, would contact Luhm’s supervisor, not Clemmons.
There is no evidence that he ever did so. Instead, he first went
to Luhm’s office and asked the latter what had taken place.
According to Moelter, Luhm said only that Clemmons did not
lift the toilet seat, and that Luhm told him that he thought
Clemmons’ mother taught him better than that. Moelter, was
asked whether Luhm said anything more than what Moelter
related. Moelter answered that Luhm did not do so. There is
no evidence that Moelter told Luhm about Clemmons’ state-
ment to Moelter.
Luhm was asked whether Moelter initiated the conversation.
“You could say it that way,” he replied. Moelter came in and
asked whether an altercation had taken place. Luhm testified
repeatedly on cross-examination that he could not remember
the details of his conversation with Moelter. Five days later, on
October 3, at Moelter’s request, Luhm wrote a statement for
him. He contended there that he complained about the toilet
seat to Clemmons, and that the latter replied, “You bastard, I’ll
take care of you” (pointing at Luhm). Luhm replied, according
to the statement, “The Company knows how to handle people
like you. Later, at the railroad track, Clemmons started holler-
ing” at him.27
After this September 28 conversation with Luhm, Moelter
went to the office of his supervisor, Production Manager Rich-
ard O’Reilly. The latter directed Moelter to secure additional
information, and statements were obtained from Luhm, Alan
Kelly, and Gerald Ballard. None was secured from Fred
Clemmons or John Hewitt. O’Reilly testified that he was
probably the individual who decided that Clemmons should be
terminated. He based this principally on a comment in Kelly’s
statement that Clemmons should calm down.28
4. Clemmons’ suspension and discharge
a. The suspension
The next day, September 29, was a day off for Clemmons.
He heard that somebody had been talking about this matter with
Company Vice President Steve Becker. Clemmons went to the
plant and attempted to tell Becker about the incidents, but the
latter said that he was suspended and had to see Human Re-
source Manager Carol Davis. Clemmons asked whether Luhm
had been disciplined in any manner, and Becker replied that
there had been no discipline. Clemmons looked at Becker and
said: “I know every bit of this is union related.”
According to Davis, Moelter came in first and said Clem-
mons had threatened Luhm and should be suspended. Clem-
mons arrived and failed to deny the allegations against him.
Clemmons said that Luhm had talked about Clemmons’
mother, and Clemmons was very upset. Davis asserted that
Clemmons admitted “threatening” Luhm. However, Davis
could not specify the nature of the threat. It took place in the
27 R. Exh. 21.
28 R. Exh. 3.
AMERICAN CRANE CORP. 1409
bathroom, not later. Asked whether Clemmons stated that he
told Moelter that the latter had better get Luhm off Clemmons’
back or he would kick his ass, Davis denied that this was dis-
cussed. Clemmons presented his version of the incident. He
was “mad, and didn’t want anybody to talk about his mother.
Asked whether this statement warranted a suspension, Davis
replied, “Yeah, because he was upset then.” Davis denied that
Clemmons gave as many details as were related in Clemmons’
statement.29 He was suspended for “verbal threats towards
another employee on the late afternoon of September 28.”30
b. The warning to and discharge of Clemmons
As previously indicated, Clemmons was suspended on Octo-
ber 3 and discharged on October 731 Human Resources Man-
ager Davis testified that the suspension was pursuant to the
Company’s policy of investigating the matter.
Supervisor Moelter went with Clemmons to his locker on the
day of the discharge. Clemmons had kept union cards in his
locker. When they arrived at the locker the lock was gone and
the union material was missing.
With respect to the investigation, Davis acknowledged that
she read Clemmons’ and Luhm’s statements, and that both refer
to incidents which took place subsequent to the bathroom inci-
dent. Further, Clemmons’ statement places John Hewitt in the
toolroom during the toolroom incident. Nonetheless, Davis
testified that she was investigating only the bathroom incident.
Accordingly, she did not interview Hewitt.
Davis asserted that Respondent had administered discipline
in comparable cases. She discussed a case where the employee
threw a sharp wedge at a supervisor, and was terminated. In
another, the employee held a knife to another employee, threat-
ened him, and was discharged. In another, an employee inter-
fered with another employee’s work performance, also threat-
ened him with bodily harm, and was discharged.
Moelter also issued a warning to Clemmons on October 3,
for exceeding his quota of four “early outs” or “late-ins.”32
Clemmons credibly testified that his son was ill in a hospital
and that Moelter had previously allowed him to go to the hospi-
tal whenever needed.
5. Factual and legal conclusions
The record shows that it was Clemmons who complained
about Luhm. Although Luhm assertedly spent 10 to 15 minutes
in his office after the bathroom incident, he did not call a su-
pervisor to complain of a threat from Clemmons. After Clem-
mons complained to Moelter about Luhm and the latter asked
Luhm for an account of the incident, Luhm recited only his
conversation with Clemmons about the toilet seat and Clem-
mons’ mother—he did not recite any threat on the afternoon of
September 28. In fact, he could remember very little about the
conversation. It was not until 5 days later that Luhm gave
Moelter a solicited statement alleging that Clemmons said he
would “take care of” Luhm. Luhm’s admitted response was
that the Company knew how to take care of people like Clem-
mons. It was on these facts alone that Respondent made its
decision to suspend and then terminate Clemmons.
Luhm was an evasive and unresponsive witness. His testi-
mony about remaining in his office for 10 to 15 minutes after

29 G.C. Exh. 4.
30 G.C. Exh. 3.
31 G.C. Exhs. 2 and 6.
32 G.C. Exh. 5.
the bathroom incident, yet meeting with Clemmons (returning
to his work station) near the railroad track, is unlikely. His tes-
timony about the incidents near the toolroom is opposed not
only by Clemmons but also by Hewitt. Clemmons was more
truthful in demeanor, and I credit his account of the bathroom,
railroad track, and toolroom incidents.
I credit Clemmons and Kelly that Moelter advised Clem-
mons to speak to Luhm’s supervisor. Moelter nonetheless went
immediately to Luhm. He obtained no evidence of a threat
from Luhm, but went to Production Manager O’Reilly who
directed an investigation. Moelter did not attempt to get a
statement from Clemmons, who supplied it on his own, and no
statement was secured from Hewitt. This was an unfair inves-
tigation and thus evidence of discriminatory motivation.
According to the testimony of O’Reilly and Davis, the Com-
pany’s final reason for suspending and then terminating Clem-
mons was that he was “upset” about Luhm’s reference to
Clemmons’ mother. This is far from a threat of bodily injury.
The Company actually seized on Clemmons’ protest to Moel-
ter, and twisted it into an investigation of Clemmons. Although
the investigation revealed nothing whatever until Luhm’s solic-
ited statement, and little there, Respondent relied on these
wisps of evidence to justify the suspension and termination of
Clemmons. The allegedly similar cases cited by Respondent
involved actual employee misconduct more heinous than
Clemmons’—if he was guilty of anything.
Clemmons visiting his son in the hospital was pursuant to
Moelter’s permission. Accordingly, there was no valid reason
for the warning issued to Clemmons.
Clemmons’ leading role in the union campaign warrants an
inference that his protected activity was a factor in Respon-
dent’s decision to discipline him. Respondent has not shown
that it would have done so absent his protected activity.33 Ac-
cordingly, Respondent violated Section 8(a)(3) and (1) by sus-
pending and warning Clemmons on October 3, and by dis-
charging him on October 7, 1994.
B. Zachary Givens
1. Givens’ employment history
Givens was hired in June 1989. In 1990, he began working
in the stores department. Givens received several evaluations
during his employment. He testified that employees were rated
in various categories from 1 to 6, with 6 being the highest rat-
ing. In October 1991, Givens received five “6s,” three “5s,”
and one “3,” the latter in the attendance category. In the spring
of 1992, he received laudatory comments from his supervisor.34
33 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983); Manno Electric Inc., 321 NLRB 278, 280 fn. 12
(1996)
34 The supervisor’s comments read as follows:
Zack always aspires to do the best that he possibly can. As
the depart. safety rep, he (illegible) with the appropriate personel,
with depart. safety in mind. He continues to take the initiative to
work in other areas when the work load is slow without being
asked. Zack has persevered even though all of the (illegible) con-
spirarcy over the last several months. Good job!
Zack is an asset to our team. He’s always willing to do what-
ever it takes to meet the needs of the department/company. He
often makes suggestions (illegible) benefit the dept and takes
great pride in his job. He is always trying to make it better and
easier for someone in the future, whether it is cleaning trash, get-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1410
In April 1993, Givens received eight “6s” and one “5,” the
latter in the attendance category.35 In October 1993, Supervisor
Inez Crisp gave Givens one rating of “6,” six ratings of “5,”
and one rating of “4–5.” In April 1994 Crisp gave Givens two
ratings of “6,” six ratings of “5,” and one rating of “4–5.”36
2. Givens’ union activities, subsequent ratings and suspension
a. The union activities and complaint allegations
After the union campaign began on September 6, 1994, Giv-
ens attended union meetings and wore a union button. His
supervisor, Inez Crisp, saw the button and commented on it.
I have previously relied on Givens’ testimony in finding that
Respondent violated Section 8(a)(1) by disparately applying a
no-solicitation rule. That evidence included a verbal warning
to Givens on September 30 for discussing the Union during
company time.37 The complaint alleges that this warning was
given because of Givens’ union activities and thus violated
Section 8(a)(3).
The complaint also alleges that Givens received two verbal
warnings on September 29, for poor work performance and
another for discussing union business on company time. Re-
spondent’s records indicate these warnings.38 Givens denied
receiving the latter warning on September 29.
The complaint also alleges that Givens received a warning
on October 6, 1994. On that date Supervisor Crisp issued a
“counseling action” to Givens asserting that he was observed
not working for 10 minutes, and that future conduct of like
nature could lead to more severe discipline including discharge.
Givens refused to sign the counseling action.39
The complaint alleges that Respondent issued an unlawful
warning to Givens on October 17, 1994, and suspended him on
October 20. On October 17, Respondent issued a counseling
action for poor work performance in that Givens deliberately
put parts in the wrong locations and wrote down erroneous part
numbers, thus preventing an emergency order from being
shipped. He was also observed doing nothing for 10 minutes,
and was given a 3-day suspension and a “final warning.”40
Finally, the complaint alleges that Respondent discriminato-
rily issued an unsatisfactory employee evaluation of Givens in
November. The record shows that on October 3, Supervisor
Crisp issued an evaluation of Givens with ratings ranging from
“3” to “5,” and a “2” for attitude, because an employee com-
plained that Givens was “harassing” him about the Union.41
Givens initialed the document then attempted to get Supervisor

ting boxes, consolidating, etc., and pointing out unsafe conditions.
He is very safety and quality concientious and knows what his job
is about . . . with few errors. When he completes his regular du-
ties, he is willing to help out somewhere else without being told.
He manages his time very well. Very seldom do I have to ask
him to update me on a job. He is very informative about what he
is doing and where he is at all times. He accepts correcting as a
learning tool and not as negative criticism. We need more
“Zack’s” in this company. [G.C. Exh. 15.]
35 Ibid.
36 G.C. Exh. 16. The October 1993 and April 1994 ratings have the
initials “I.C.” at the bottom, and Givens testified that the ratings were
by Inez Crisp.
37 G.C. Exh. 10.
38 R. Exh. 31(a); G.C. Exh. 10.
39 G.C. Exh. 12.
40 G.C. Exh. 13.
41 G.C. Exh. 16.
Crisp to remove his initials, but she stated she had already
turned it over to personnel. Givens then went to Human Re-
source Manager Carol Davis, who refused to remove Givens’
signature. She told him to submit a rebuttal, and he did so.42
b. Factual and legal conclusions
The warning issued to Givens on September 30 regarding so-
licitation was occasioned by another supervisor telling Supervi-
sor Crisp that one of the former’s employees had protested
Givens’ solicitation for the Union. Crisp admitted that she did
not question either Givens or the other employee before prepar-
ing the writeup. Her failure to conduct an impartial investiga-
tion is evidence of discriminatory motivation, and warrants a
conclusion that the warning violated Section 8(a)(3).
Supervisor Crisp’s warning on October 6 alleges that Givens
did nothing for 10 minutes, and admitted that he was watching
other employees.43 Givens testified and denied that he made
any such admission. He averred that he told Crisp he was
stacking pallets and moving metal “trees” used for transport.
Based on Givens’ truthful demeanor, and his work ethic mani-
fested by the Company’s early evaluations of him, I credit his
testimony.
Crisp testified that Givens mislocated parts and made erro-
neous entries on their location. This testimony is contradicted
by a prior evaluation of Givens stating that he made “few er-
rors.”44 Group Leader William Bryant testified that mistakes of
this nature are common, and that Supervisor Crisp was lenient
about them and gave the employee an opportunity to find the
parts. Crisp admitted that she had never before disciplined an
employee for mislocating parts. Although Crisp alleged that
Givens made many errors over a period of weeks, the Com-
pany’s documentary evidence shows only two erroneous part
numbers and a mislocated part on September 28.45
A host of Board decisions has relied on an employee’s prior
good work history as evidence of discriminatory motivation in
subsequent discipline. Respondent’s treatment of Givens is an
example of this. Prior to his union activity he was praised as an
exemplary employee.
Crisp herself gave high ratings to Givens in October 1993
and slightly higher ones in April 1994—just 7 months before
her low ratings in October 1994. Once Givens’ union sympa-
thies became known, his ratings went down.
I conclude that discriminatory motivation was a factor in Re-
spondent’s warnings to Givens on September 30 for discussing
the Union, for alleged poor work performance on September 9,
and for not working on October 6, for alleged mislocated and
misnumbered parts on October 17, for low scores on his Octo-
ber 1994 evaluation, and for his 3-day suspension on October
17. I therefore find that Respondent violated Section 8(a)(3) by
these actions.
C. Cleatus Brown
1. Summary of the evidence—the 1994 incidents
Cleatus Brown was an 8-year employee who was worked in
the receiving department at the time of the 1994 election. He
placed parts in their bins and was under the supervision of Inez
Crisp.
42 G.C. Exh. 17.
43 G.C. Exh. 12.
44 G.C. Exh. 15.
45 G.C. Exh. 21.
AMERICAN CRANE CORP. 1411
I have found that Brown was unlawfully interrogated during
the union campaign by Supervisor Jack Yow, who questioned
him about his union button. Brown did not wear a union button
until the day of the election. He testified that Supervisors Crisp
and Yow saw the button, because they worked with him all day
in the same storeroom. Yow came to Brown to pick up paper-
work on parts that had been received.46
The complaint alleges that Respondent issued discriminatory
warnings to Brown on October 10 and 17, 1994. The record
shows that Crisp issued Brown a “final warning” on October 17
for putting parts in wrong locations, and alleged that Crisp had
to spend time locating them. It was “apparently deliberate,”
according to Crisp.47
Brown testified that Crisp gave him the warning on October
19. It indicated that this was Brown’s second warning. He
asked Crisp about this, and she told him that she had previously
given him a warning on October 10. Crisp testified that she
gave Brown a verbal warning on October 10 for the same al-
leged infraction. Brown denied any prior warning. He told
Crisp on October 19 that he could not have made all the mis-
takes she alleged and asked why she did not ask him to find the
parts. “It’s all here right on the paper. The proof is on the loca-
tion sheets,” Crisp replied. The warning itself does not have
any “location sheets.” Brown agreed that “locator sheets” were
attached to the warning when Crisp showed it to him, but none
is attached to the exhibit in evidence,48 and Respondent did not
submit any.
Human Resource Manager Carol Davis was asked whether
any other employees had been disciplined for the same reasons
as in case of Brown (and Givens). She responded with three
examples. In the first, the employee was discharged after caus-
ing $4500 of damage in parts fabrication and failing to call in
for 2 days.49 In other instances the employees received warn-
ings for attendance infractions, faulty workmanship, and dam-
age products.50
2. The 1996 incidents
The complaint51 also alleges that Respondent issued a poor
performance rating of Cleatus Brown on August 19, 1996, and
a warning on September 25, 1996, both of which were dis-
criminatorily motivated. Brown was laid off on November 3,
1994,52 and was recalled on August 25, 1995, through a tempo-
rary service.
Brown received various evaluations. In an evaluation in
May 1993, which predated his participation in the 1994 Union
campaign, Crisp gave him one “6,” one “5,” one “4–5,” one “3–
4,” three “3s,” and two “2s.”53 On February 5, 1996, after
Brown’s return from layoff, Crisp have him a “third final”
counseling for “poor work performance.” The counseling
reads:

46 Case 11–CA–16292.
47 G.C. Exh. 24.
48 Ibid.
49 R. Exh. 39.
50 R. Exhs. 40, 41.
51 Case 11–CA–17235.
52 Other employees were laid off on November 3, 1994, and the
complaint in Case 11–CA–16292, et al., alleges that it was an unlawful
unilateral layoff in violation of Sec. 8(a)(5). This issue is considered
hereinafter.
53 G.C. Exh. 73. Crisp’s identity as the evaluator is indicate by the
initials “I.C.” at the bottom of the evaluation.
Employee’s amount of work does not meet Company’s re-
quirements. Cleatus has a bad attitude towards supervisor,
talking back and questioning what is he told to do. Is not co-
operative or helpful to any other employees, refuses to even
answer a question pertaining to work.54

About 2 weeks later, on February 17, Crisp gave him an evalua-
tion with one “4–5,” one “3–4,” one “3,” four “2s,” and two
“1s.”55
Brown received a subpoena to testify in this proceeding in
July 1996. Prior to doing so, he showed the subpoena to Crisp
and asked for a day off. Crisp replied: “I don’t know if I can
let you go. I’ve got to see what I can do about this.” Brown
responded: “Well, Inez, I’m not going to jail for you or Ameri-
can Crane.” Crisp’s rejoiner: “Well, it’s your fault anyway.”
Brown testified pursuant to the subpoena.
On August 19, 1996, Brown’s ratings were further reduced
in another evaluation to one “4–5,” one “3–4,” one “3,” three
“2s,” and three “1s.”56 On September 24, Crisp gave him a
“final counseling,” stating that his amount of work did not meet
Company requirements. On the back of the counseling Crisp
stated:

Cleatus did not pass the last supervisor’s evaluation.57 The
employee has made no effort at all to improve. He has be-
come worse about being a team player. He is disrespectful to
supervisor constantly. Example on 9–23–96 I was talking to
Cleatus and he walked away and turned his back on me. Cle-
atus works very inefficiently he does things the slowest way
possible. He goes to the water fountain and bathroom
approximately 20 times a day. The amount of work Cleatus
does each day is about 50% compared to the average em-
ployee. I cannot continue to get 50% production from this
employee.58

The next day, September 25, 1996, Crisp issued another final
counseling, alleging that Brown worked very inefficiently, was
always insubordinate, and did not have a good attitude toward
fellow employees.59
Crisp testified that she anticipated she would require evi-
dence to support her conclusions that Brown worked slowly.
She selected August 28, 1996, as a date to examine Brown’s
work. This consisted of six pages of orders which, Crisp esti-
mated, would have required only 4 hours of work.60 However,
Brown had retained copies of his work for that day, and the
General Counsel presented Crisp with another series of docu-
ments for Brown’s work consisting of nine pages.61 Crisp con-
tended that her original estimate was based on nine pages of
orders, and that she sent them forward through personnel. Re-
spondent’s counsel agreed at the hearing that three pages may
have been “lost in transmission.”
Crisp asserted that Brown was working with a trainee pack-
ing separate orders. Although the trainee “knew nothing,” he
was doing three times as much work as Brown. Crisp agreed
that the Company had production records for the trainee and
Brown. The General Counsel stated that the Company had
54 G.C. Exh. 72.
55 G.C. Exh. 73.
56 Ibid.
57 The “last supervisor” was Crisp herself.
58 G.C. Exh. 73.
59 G.C. Exh. 74.
60 G.C. Exh. 76.
61 G.C. Exh. 77.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1412
provided the record of one day of work (September 19) for the
trainee and another employee, but had not provided data com-
paring Brown’s work with another employee. Respondent’s
counsel argued that the Board investigator never asked for this
information. Respondent was invited to produce the compara-
tive data at the hearing. None was produced.
Brown denied that he had ever been given a time for packing
orders, nor was the time for a particular order recorded. He
disputed Crisp’s time estimates on the packing of various parts,
with detailed explanations. Crisp directed him to train an em-
ployee from time to time, including the fall of 1996. He was
required to drive a forklift for the trainee during that time pe-
riod, because the trainee did not have a forklift license. This
took time from Brown’s packing orders.
In support of the September 25 insubordination charge, Crisp
stated that she spoke to Brown on September 23 after he had
clocked out, and told him that she had a something to tell him.
Brown replied that he had already clocked out, and had some-
thing to do. Crisp could tell him in the morning.
Crisp repeated her written charge that Brown went to the
bathroom or water fountain about 20 times a day. Brown testi-
fied that he went to the bathroom three or four times during his
shift, and carried a water bottle with him at work.
3. Factual and legal conclusions
I conclude that Respondent’s supervisors saw Brown’s union
button on the day of the election, and thus knew of his union
sympathies.
The prior evidence establishes Crisp’s animus against the
Union. With respect to Brown’s alleged mislocation of parts,
William Bryant testified that Crisp was lenient with respect to
errors, and gave the employee an opportunity to find the part.
When Brown asked her why she did not give him a similar
opportunity, Crisp replied merely that she had the “proof” in
the locator sheets. This “proof” is not in evidence, and, be-
cause of Crisp’s animus and demeanor, I do not credit her tes-
timony as to what the “proof” shows. Her refusal to allow
Brown to find the allegedly mislocated parts, contrary to her
existing policy, further manifests her discriminatory motiva-
tion.
The examples of other discipline proffered by Human Re-
source Manager Davis involved more significant employee
infractions compared to Brown’s alleged mislocation of parts.
Crisp’s discipline of Brown in 1996 is not supported by
credible evidence. Her allegation that he only produced half of
what an “average” employee produced is not supported by any
documentary evidence, although Crisp admits that such evi-
dence does exist. I infer that, if produced, this evidence would
not support Crisp’s allegations. Her estimates of the amount of
time required for Brown to pack orders were general in nature,
whereas Brown provided detailed descriptions of the packing
requirement as to each part. Crisp’s testimony is further im-
pugned by Respondent’s submission of an incomplete record of
the parts which Brown packed. Brown’s duties in driving a
forklift for a trainee cast further doubt on his allegedly inade-
quate production.
Crisp’s allegation of insubordination has no merit. Brown
had already clocked out when Crisp wished to speak to him,
and he appropriately told her that she could give him the in-
struction the next morning. Crisp’s allegation that Brown went
to the bathroom or water fountain 20 times a day is exaggerated
and was credibly denied by Brown.
Brown was calm and truthful in demeanor, and I credit his
version of these various disputes. Respondent has not shown
that his discipline was justified. The steady decline in Brown’s
evaluations without any credible evidence to support it, is fur-
ther evidence of Crisp’s animus which, I conclude, was intense
in nature. Respondent has not shown that it would have given
Brown this discipline absent his sympathy for the Union, and,
accordingly, has not rebutted the General Counsel’s strong
prima facie case. Accordingly, Respondent violated Section
8(a)(3) and (1) of the Act.
Although the complaint alleges discriminatory warnings on
October 10 and 17, 1994, Brown credibly denied that he re-
ceived any warning on October 10, and I find that only the
October 17 warning occurred. Although the complaint as con-
solidated alleges a poor performance rating on August 19,
1996, and a warning on September 25, 1996, the evidence
shows a warning on February 5, 1996, an evaluation on Febru-
ary 17, and a warning on September 24, as well as the disci-
pline alleged in the complaint on August 19 and September 25.
All these matters were thoroughly litigated, and unless ex-
punged from Brown’s record would leave him without an ade-
quate remedy.
Crisp’s statement to Brown that she did not know whether
she could permit Brown to honor a Board subpoena, and that it
was his “fault,” demonstrates that her discipline of Brown was
also motivated by his testimony at the hearing. Accordingly,
Respondent also violated Section 8(a)(4) of the Act.
D. Johnny Thompson
1. Thompson’s employment history and union activities
The complaint alleges that Johnny Thompson was unlaw-
fully discharged on July 19, 1995. Thompson began work at
the Company in February 1985. He worked in the assembly
department, where the cranes were built “from the ground up,”
assembled, tested, and loaded. He received high ratings on
evaluations in 1994, and was made a “group leader.” His su-
pervisor stated that he had improved in this position, and helped
run the assembly department when the supervisor was on vaca-
tion.62
During a prior election campaign, in 1989, Thompson was
one of the principal employees bringing the Union to the plant,
and was an observer at the election. During the 1994 campaign
he attended a union meeting and wore a union button before the
election, and for about 3 weeks thereafter.
Tompson testified that the supervisors “started watching the
men a little closer” in mid-1995. Accordingly, about the be-
ginning of July, Thompson started wearing a union button
again, as did other employees.
2. Thompson’s leaving the plant on July 14
Jerry Strickland, who had been employed in 1985, was made
supervisor of the assembly department on July 5, 1995. On
July 13, Strickland had to leave the plant to test a crane, and left
Thompson, as group leader, in charge. According to Strick-
land, he instructed Thompson in writing to extend the “lube
line” on a crane. This instruction was on a “bug sheet,” i.e., a
list of defects. Thompson assigned 3 hours to his work as
group leader on that day. The next day, according to Thomp-
son, Strickland asked him about the 3 hours in an “accusatory
tone.” A short time later, Strickland asked Thompson why he

62 G.C. Exh. 42.
AMERICAN CRANE CORP. 1413
had marked off a “bug” (defect) which he had not in fact
worked on. Thompson explained that he had extended an air
piping line rather than a grease line, because “it was marked on
there,” and that it was a miscommunication. Strickland said,
“O.K.”
Thompson testified that he was upset by what he considered
to be Strickland’s “insinuation” that Thompson had been lying
to him. He said to Strickland that he was pushing the employ-
ees too hard, that they were getting the work done, and that if
this did not stop it would turn around on Strickland and “bite
him in the ass.”
Thompson testified that he could not concentrate as a result
of these events, and that this inability would be dangerous when
working on a crane. Accordingly, he told Strickland that he
needed to go home, and that Strickland could put it down as a
personal day or a vacation day.
According to Thompson, he had previously told supervisors
that he wanted a “personal day,” and that employees were enti-
tled to four of these per year. “Even if they were in a bind
where they needed you, if you needed to leave you could
leave.” James Millis, a current employee, testified that em-
ployees were entitled to four “early outs” and four “late ins” per
year. He simply “told” a supervisor that he was taking an early
out, and the supervisor would say “okay.” Or an employee
could call in prior to the beginning of his shift, and inform a
guard that he was taking a personal day. Millis was not ques-
tioned by Human Resources Manager Davis until after Thomp-
son’s discharge.
Supervisor Strickland contended that an “early out” was an
excused absence, and had to be “worked out” with the supervi-
sor. Human resource manager Carol Davis, interpreting the
employee handbook,63 first testified that “all absences are unau-
thorized with the exception of available personal time, which is
a maximum of 4 full days and four late-in’s and or early out’s”
during a calendar year. Later, however, Davis testified that if
an employee left the plant without supervisory permission, this
would be an “unauthorized absence.” The discipline for this
offense was progressive–three warnings for successive viola-
tions followed by discharge. Manufacturing manager O’Reilly
was asked whether employees simply told supervisors that the
were going to take an “early out,” and replied, “That has hap-
pened.”
According to Strickland, Thompson told him on July 14 that
Strickland expected too much out of the employees, and that
Strickland could “mark him down excused, unexcused which if
they go home early is . . . they’ve got personal time.” In his
pretrial affidavit, Strickland stated that Thompson said Strick-
land could mark him as a “personal” or “early out” and that it
did not make any difference to Thompson.64
Strickland did not respond to Thompson’s statement. The
latter went to his locker, obtained some personal effects and
walked out. He passed within 75 feet of Strickland, who
looked at him but said nothing.
Thompson returned to work the following Monday, July 17,
and was told by the guard that Manufacturing Manager Richard
O’Reilly wanted to see him. O’Reilly gave him a form stating
that he was suspended pending an investigation.65 He told
Thompson to arrange an appointment with Human Resource

63 Jt. Exh. 1, pp. 13–14.
64 R. Exh. 49.
65 G.C. Exh. 27.
Manager Carol Davis. This took place with O’Reilly and Davis
on July 20. David Reilly was the union representative for
Thompson. The latter read a statement to O’Reilly and Davis.
He asked Davis whether she had talked with his witness, Rufus
Randolph. Davis said that she had done so. Randolph, how-
ever, testified that he did not discuss Thompson’s discharge
with Davis until after it had already taken place. Accordingly,
Thompson told Davis on July 20 that she had not in fact talked
with Randolph,66 and Davis replied that she was not there to
discuss the investigation. She shuffled papers and did not ap-
pear interested in what Thompson had to say. O’Reilly told
Thompson that he was discharged for walking off the job and
for insubordination.
Thompson arranged a meeting with Company President
Dave Lewis, and read a statement. Lewis called him a few
days later and said it was best to let things remain the way they
were.
Union Representative David Reilly later asked Human Re-
source Manager Davis for the reason for Thompson’s dis-
charge. She refused to give him this information.
3. Factual and legal conclusions
It is undisputed that employees were entitled to four “early
outs” per year. The only issue is whether the employee had to
secure prior agreement from a supervisor to exercise this right.
Human Resource Manager Davis’ testimony on this issue was
ambiguous. Her original testimony—that all absences are un-
authorized “with the exception of available personal time”—
suggests that an employee’s taking “personal time” was not an
unauthorized absence. On the other hand, Davis later con-
tended that an employee’s leaving the plant without supervisory
permission was an “unauthorized absence.” Although this lat-
ter testimony was corroborated by Strickland it was contested
by Thompson and Millis, the latter a current employee unlikely
to testify untruthfully. Thompson’s and Millis’ testimony was
corroborated by Manufacturing Manager O’Reilly, who admit-
ted that some “early outs” had simply been announced to the
supervisor by employees. It is also undisputed, according to
Davis, that the penalty for a first unauthorized absence was a
warning, and that discharge did not take place until three such
violations had occurred.
Coming to the facts in the case, Thompson told Strickland
that he needed to go home, and that Strickland could mark it as
a personal day or a vacation day. Strickland said nothing, ei-
ther in response to Thompson’s statement, or when he saw
Thompson leave the plant.
I credit the testimony of Thompson and Millis, corroborated
by Plant Manufacturing Manager O’Reilly, that the Company’s
practice was to allow an “early out” by an employee’s an-
nouncement of same to a supervisor, provided the employee
had the available time to his credit. I do not credit Human Re-
source Manager Davis’ contradictory testimony on this subject,
nor the statements of Strickland, a supervisor by only a matter
of a few days. It follows that Thompson’s departure on July 14
was in accordance with company practice.
Even if supervisory approval of a personal day had been re-
quired, Thompson would have been warranted in interpreting
Strickland’s silence when Thompson made his statement, and
66 On July 18, Davis wrote a memo to the file asserting that she had
talked with Rufus Randolph. R. Exh. 52. I credit Randolph’s denial of
this statement.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1414
again when Strickland saw him leaving the plant, as acquies-
cence in the request.
Finally, even if Thompson’s departure were deemed an un-
authorized absence, the penalty for this first offense was a
warning, not discharge, according to Human Resource Manager
Davis.
Thompson had been a supporter of the Union beginning in
1989, when he was active in bringing the Union to the Com-
pany and was a union observer in the election that year. He
wore a union button before the 1994 election, and for several
weeks thereafter. When the employees perceived that they
were being watched more closely by supervisors in mid-1995,
Thompson and other employees started wearing their union
buttons again. Finally, on July 14, Thompson complained to
supervisor Strickland that he was pushing the employees too
hard—clearly protected activity on behalf of the employees.
Respondent’s animus against protected activity has already
been established. It did not conduct a fair and complete inves-
tigation of Thompson’s alleged misconduct. Davis did not
speak with either Millis or Randolph—the latter designated by
Thompson as a witness for him—until after Thompson had
been discharged. Indeed, Davis falsely told Thompson during
the exit interview that she had already spoken with Randolph.
Davis admitted that when an employee is interviewed after a 3-
day suspension, the decision on discipline had already been
made. Yet this was Thompson’s first opportunity to present his
case. Failure to conduct an impartial investigation is evidence
of discriminatory motivation.
One of the asserted reasons for Thompson’s discharge was
“insubordination.” There is no evidence that Thompson re-
fused to obey an order from Strickland. In fact, Strickland said
nothing whatever. The Board, citing a prior case,67 has held
that “discharge of an excellent worker for minimal insubordina-
tion is evidence of discriminatory motivation.” Vincent M.
Ippolito, Inc., 313 NLRB 715, 724 (1994). This rationale ap-
plies with greater force herein, where Thompson did not violate
any company practice, and was discharged rather than warned,
contrary to the Company’s own practice, for an offense which it
erroneously asserted Thompson had committed.
Respondent has not met its Wright Line obligation68 in rebut-
tal of the General Counsel’s prima facie case. Accordingly, I
conclude that its discharge of Thompson on July 20, 1995,
violated Section 8(a)(3) and (1) of the Act. Respondent’s re-
fusal to give Union Representative David Reilly the reason for
Thompson discharge was a violation of Section 8(a)(5).
IV. THE ALLEGED REFUSAL TO BARGAIN
A. The Alleged Unilateral Layoff and Transfer of Employees
1. Summary of the evidence
The pleadings establish that the Board certified the Union as
the collective-bargaining representative of Respondent’s pro-
duction and maintenance employees on October 21, 1994, and
that the Union thereafter requested bargaining. The complaint
alleges that on November 3, 1994, Respondent unilaterally and
without notification to or consultation with the Union, laid off
certain employees and granted bargaining unit positions to six

67 Hinky Dinky Super Markets, 247 NLRB 1176 (1980).
68 Supra, fn. 33.
nonbargaining unit employees through its bumping proce-
dures.69
On October 24, 1994, Union International Representative
Thomas Chastain sent Company President David Lewis a bar-
gaining demand and information request.70
Lewis contended that parts sales began to decline in the
summer and early fall of 1994, caused a cash flow shortage,
and caused problems with a big order. Lewis considered vari-
ous ways to save costs, including a layoff of employees. On
October 24, 1994, the Company comptroller gave him a pro-
posed “headcount reduction” of 41 employees identified by job
but not by name.71 There was no bankruptcy filing, and Lewis
was in contact with the Company’s bank on a regular basis with
respect to the cash flow forecast. The bank imposed no dead-
lines.
The deadline was imposed by Lewis himself. The depart-
mental managers were told to prepare lists of employees to be
laid off, and Lewis testified that he made the decision to layoff
employees. In the late morning or early afternoon of November
2, according to Lewis, he called Human Resource Manager
Carol Davis, and told her there was going to be a layoff on
November 3. Lewis instructed her to call the departmental
managers, get the names of the employees, and prepare the
layoff documents. Davis testified that she received this call,
got the names of the employees to be terminated on November
3 from the departmental managers, and wrote down the names
of the employees and other data concerning them, in about 2
hours. These names were written by Davis on a document of 6
pages. Each page has the heading, “Terminations.” Numerous
employees are listed with various termination dates, 39 of them
with the date “11/3/94.” Respondent’s counsel described this
exhibit as “the worksheet prepared by Carol Davis during the
period of time employees were being selected for layoff which
ultimately occurred on November 3, 1994.72
In the margin of each page of Respondent’s Exhibit 61 ap-
pears the notation “Nov. 2, ‘94, 8:03 a.m.” and a fax number
“910–395–8553.” Davis identified the latter as the fax number
of the purchasing department, and agreed that it indicated that
the document was faxed somewhere at 8:03 a.m. on November
2. Davis was unable to explain how the document could have
been faxed at this time if it was not prepared until later in the
day. In a prior layoff, a document similar to Respondent’s
Exhibit 61 was prepared about 3 weeks prior to the layoff
date.73
Lewis testified that, on about mid-day on November 2, he in-
structed his attorney to contact the Union about the layoff. This
was the first such request Lewis had made. The attorney did
69 G.C. Exh. 1(aa), pars. 18 (a), (b).
70 G.C. Exh. 37.
71 Lewis contended that only 11 of these positions were in the bar-
gaining unit, and 33 were not in the bargaining unit. However, the
“headcount reduction” list includes 22 positions under the heading
“Mfg O/H” (id., p.3), which Lewis identified as the “manufacturing”
employees, including those in the bargaining unit, and 11 in the “SGA
O/H” category, which Lewis identified as “sales, general, and adminis-
trative.”
Counsel for the General Counsel introduced a list of 41 names which
she asserted were the names of bargaining unit employees terminated
on November 3 (G.C. Exh. 41). Respondent’s counsel contended that
only 11 of them were bargaining unit employees.
72 R. Exh. 61. The names of the employees are handwritten, and not
all are legible.
73 R. Exh. 63; testimony of Davis.
AMERICAN CRANE CORP. 1415
not get a call back until 2 or 3 days later. International Repre-
sentative Chastain testified that he first learned of the layoff
from an employee the day after it occurred. He called Com-
pany President Lewis and told him that the Company had no
right to layoff employees without bargaining, and that the Un-
ion wished to bargain about the matter. Lewis referred Chas-
tain to the Company’s attorney.
2. Factual and legal conclusions
I do not credit Respondent’s evidence to the effect that its
decision to layoff employees was made on November 2. This
contention is contradicted by the time, early in the morning on
November 2, when a six-page fax containing the names of the
employees to be terminated was transmitted. Further, it is
unlikely that Human Resource Manager Davis could have ob-
tained the names of the employees from the departmental man-
agers, and could have written the data concerning them in the
limited time which she described. I conclude that the decision
to layoff these employees was made some time prior to No-
vember 2.
Taking at face value Respondent’s contention that the layoffs
were required because of a shortage in cash flow, the most that
can be said about the decision is that it was motivated by eco-
nomic considerations. As such, it was a mandatory subject of
bargaining. Lapeer Foundry & Machine, 289 NLRB 952
(1988). The record establishes that Respondent laid off certain
employees without giving the Union an opportunity to bargain
over the layoff, and perhaps explore other avenues to solve the
Company’s asserted financial problems.
Respondent argues that it did not ascertain the nature of its
cash-flow shortage until “October’s month-end figures were
determined,” and that these were “even worse” than Lewis had
contemplated.74 As described above, Respondent’s alleged
cash flow shortage was first noted by Lewis in the early sum-
mer of 1994. Nonetheless, no ultimatum was given Respondent
by its bank, and the deadline was established by Lewis himself.
As I do not credit Respondent’s position that it decided on No-
vember 2 to effect the layoffs on November 3, it is obvious that
the decision was made sometime before that date. Whether the
decision was occasioned by the Union’s certification on Octo-
ber 21 and the Union’s demand letter 3 days later is a matter of
speculation as to which I express no opinion. In any event, I
conclude that Respondent had time to notify the Union of its
alleged financial difficulties, and to give it an opportunity to
bargain concerning them, prior to the November 3 layoff. The
Board concluded in Lapeer that although compelling economic
circumstances may excuse an employer’s failure to bargain
over a layoff decision, this will apply in only “extraordinary
situations” (289 NLRB at 954). This record does not establish
such an extraordinary situation.
Respondent also argues that its transfer of other employees
into the vacancies created by the layoff were made pursuant to
its established bumping procedures, and, accordingly, were not
unlawful, citing Ideal Macaroni Co., 301 NLRB 507 (1991).
However, in that case the Board concluded that the employer
had adequate business justification for the discharges. There
was no issue as to whether a labor organization should have
been given a prior opportunity to bargain over the discharges.
Accordingly, Ideal Macaroni is inapposite.

74 R. Br. 53.
I therefore find that Respondent’s failure to give the Union
herein an opportunity to bargain over the layoff, and its transfer
of non-bargaining unit employees into the resulting vacancies
violated Section 8(a)(5) and (1) of the Act.
The record is unclear as to the identities of the bargaining
unit employees adversely affected by the layoff. However, I
need not make this decision now, and will defer it to a supple-
mentary compliance proceeding.
B. The Alleged Refusal to Grant Access for Health and Safety
Inspections
1. Summary of the evidence
The complaint alleges that Respondent unlawfully refused to
allow the Union’s representative access to the plant to conduct
health and safety inspections and to conduct tests to determine
the presence of hazardous conditions and toxic fumes and
gases.
Joe Stevens was a welder who was a member of the Com-
pany’s safety committee for 3 or 4 years ending in January
1996. Stevens made safety inspections every other month in
several areas of the plant, while other committee members
made other inspections. Stevens identified the following safety
problems which he observed: (1) a “dead spot” which cut off
power to an overhead crane and caused the crane to stop; (2) a
water line that could trip employees; (3) a torch that leaked gas;
(4) a fire extinguisher that was not hung up on a wall; (5) an
“elbow” that needed to be screwed back to cover electrical
wires; (6) carbon dioxide lines that needed to be plugged; (7)
the hiding of chains prior to outside inspection of them; (8) the
use of methyline choride, a cancer-causing agent, to facilitate
the removal of “spatter” from the floor; (9) a gas line explosion
that blew the cap off a line and caused employees to be evacu-
ated; and (10) another explosion which blew the cap off a gas
line.
Stevens testified that he turned in work orders to correct
these matters. Prior to the union election, according to Stevens,
“nothing would get fixed,” but after the election, deficiencies
were corrected more expeditiously. Stevens attended union
meetings during the campaign, where safety was one of the
issues. International Representative Chastain was present at
some of these meetings.
Employee Fred Clemmons testified about a conversation he
had during the Union campaign with Robert Cumming, whom
Clemmons identified Respondent’s owner.75 During this con-
versation, Clemmons voiced concerns about “chains that was
breaking, gas leaks in the building . . . .”
On October 28, 1994, Union Representative Thomas Chas-
tain sent a letter to Company President David Lewis, in which
he stated that various employees had voiced concerns about
health and safety hazards and wanted the Union to investigate
the hazards and work with the Company to correct them.76
Chastain proposed that the Company allow Union Health and
Safety Specialist Milan Racic “to enter your plant and study
75 The complaint alleges and the answer denies that Cumming was a
supervisor. I credit Clemmons’ testimony that Cumming was Respon-
dent’s owner, and conclude that he was a supervisor.
76 The concerns listed in Chastain’s letter were gas leaks, machining
of cast iron, coolant and dust exposure, overhead cranes, machine
guarding, noise, chemical exposures, guarding of grinders, inadequate
ventalation, safety of welding machines, lack of hearing protection, and
inspections of hoists, chains, cables and slings. G.C. Exh. 38.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1416
and study operations in question so that we can properly repre-
sent these employees and address their concerns in full.”77
By letter dated October 28, 1994, Company Attorney
Spencer M. Youell, “declined” this request, stating that it was a
matter “appropriate for collective bargaining, and would be
addressed at the appropriate time.”78
Chastain testified that the first bargaining session took place
in December 1994. Chastain was the principal spokesman for
the Union, while Attorney Youell was the spokesman for Re-
spondent. The Union requested access to the plant in order to
be able to develop safety proposals. The Company refused, and
said that they would permit this only if the Union obtained a
contract.
According to Company President Lewis, Respondent had
previously allowed an outside source to prepare a promotional
video for the promotional purposes.
2. Factual and legal conclusions
The record clearly establishes that the Union requested ac-
cess to the plant in order to conduct a health and safety inspec-
tion, and that the Company refused to permit this unless the
Union was successful in obtaining a contract with the Com-
pany.
The Board recently stated the law on this subject as follows:

It is well settled that the information the Union seeks
to obtain from direct observation of the plant premises and
processes is presumptively relevant to and necessary for
its role as the employees’ collective bargaining representa-
tive. In upholding a union’s need for access to gather in-
formation about the relative position of a particular job
within the overall “hierarchy of the job classifications,”
the Board has held that “there is no adequate substitute for
actual on-the-job observation of the work performed for
the purpose of ascertaining what skills are actually util-
ized” (authority cited). Likewise, in this case, there can be
no adequate substitute for the Union representative’s direct
observation of the plant equipment and working condi-
tions, in order to evaluate matters such as job classifica-
tions, safety concerns, work rules, relative skills, and other
matters necessary to develop an informed and reasonable
negotiating strategy. This is particularly true in the cir-
cumstances of this case where parties were bargaining for
an initial contract.

[T]he Union and the Respondent have been engaged in nego-
tiations for an initial contract and the relationship is still in the
fledgling stage. It is readily apparent that the Respondent’s
denial of access to the Union’s international representative
prevents the experienced official from gaining a complete un-
derstanding of the Respondent’s operation and thus prevents
the employees from getting the representation they voted for
in the certification election. Furthermore, without a collec-
tive-bargaining agreement, the Union has no other avenue,
such as a grievance procedure or arbitration, for obtaining the

77 Ibid. Racic testified about his experience, which included work as
an industrial hygienist for the City of Milwaukee, and for the Occupa-
tional Safety and Health Administration (OSHA) for whom he con-
ducted over 500 inspections of health and safety in various plants. He
was later promoted to be OSHA’s Assistant Regional Administrator for
Safety and Health in Chicago, where he provided technical support for
health enforcement officials in six States.
78 G.C. Exh. 39.
desired information. The denial of access at this crucial phase
of the parties’ bargaining relationship can serve only to un-
dermine the Union’s status as bargaining representative.
[C.C.E., Inc., 318 NLRB 977, 978 (1995).]

The Board noted that the employer had previously provided
access to its facility to other individuals and groups, including a
video production crew. Balancing the conflicting rights of the
employer and the union, the Board concluded that the former
was “weak” and the latter “substantial.” Accordingly, the em-
ployer’s denial of access violated Section 8(a)(5) and (1) (id.).
Respondent herein argues that it “offered to bargain over the
terms of Union access.”79 Nonetheless, its position in bargain-
ing was continued rejection of the request for access unless the
Union obtained a contract. However, as the quotation above
from C.C.E. shows, this was a beginning relationship and with-
out a contract the Union had no way of getting the needed in-
formation; without the information it could not bargain. As the
Charging Party stated, Respondent put the cart before the horse.
Respondent argues that the Union did not state the nature of
the access it required. On the contrary, Chastain’s letter re-
quested permission for Racic “to enter the plant and study op-
erations.” Although the complaint alleges that Respondent
refused to allow access and tests, all the union letter stated as its
objective was to work with the Company in correcting the haz-
ards, and to allow Racic to enter the plant. Respondent’s argu-
ments are without merit, and I find that, by denying access
Respondent violated Section 8(a)(5) and (1).
C. The Alleged Unilateral Change in Payroll Deductions for
Employee Purchases
The complaint alleges that Respondent unilaterally changed
its policy regarding payroll deductions for employee purchases
of safety equipment. Employees purchased items from the
Company, and paid for the purchases by deductions from their
paychecks. Human Resource Manager Carol Davis testified
about two memoranda issued by Company Comptroller Connie
McGuiness.80 According to Davis, these memoranda establish
that at some time in the past, the deductions increased as the
amount owed increased. However, as of August 1994, the de-
duction was fixed at $15 per paycheck. On October 19, 1994,
the deduction would again be increased as the amount owed
increased. International Union Representative Chastain testi-
fied that he did not receive any notice from Respondent regard-
ing this change.
I conclude that this was a unilateral change in the employ-
ees’ working conditions and was violative of Section 8(a)(5).
D. The Alleged Charge for Employee Loss of an Identification
Badge
The complaint alleges that Respondent unilaterally imposed
a $5 charge on employees for loss of an identification badge.
On October 17, 1994, Respondent issued a memorandum re-
quiring all employees to show their picture identification badge
before entering the plant. Although the first I.D. badge was
issued without charge, any reissuance of a card lost by the em-
ployee would result in a charge of $5 to the employee.81 Su-
pervisor Frank Moelter agreed that he told employees of this
requirement. In addition, employee John Hewett testified that
79 R. Br. 67.
80 G.C. Exhs. 33, 34.
81 G.C. Exh. 23.
AMERICAN CRANE CORP. 1417
Moelter told him that the purpose of this requirement was “to
keep undesirables out.” Union Representative Chastain testi-
fied that he did not receive notice of this new requirement prior
to its implementation.
Respondent appeared to contend at the hearing that the rea-
son for the new requirement was the hiring of new guards.
However, Respondent’s records show that the most recent
guard hired prior to October 1994, the date of the new I.D.
requirement, was in March 1994.82 I conclude that the new
requirement was not related to the hiring of a guard who had
already been on the job more than 6 months.
As noted previously, the complaint alleges that Moelter’s
comment that the new requirement was designed to keep out
“undesirables” constituted an independent violation of Section
8(a)(1), while its unilateral imposition violated Section 8(a)(5).
I have already found that Respondent unlawfully denied safety
inspector Racic access to the plant. I further conclude that
Moelter’s comment to Hewett that the new I.D. requirement
was intended to keep out “undesirables” conveyed Respon-
dent’s intention to exclude from the plant any individual sym-
pathetic to the Union. As such, it was coercive within the
meaning of Section 8(a)(1). The unilateral imposition of the
new requirement of a $5 charge for lost I.D. cards violated
Section 8(a)(5). Millard Processing Services, 310 NLRB 421,
425 (1993).
E. The Alleged Alteration in Distribution of Payroll Checks
The complaint alleges that Respondent unilaterally altered its
payroll policy by denying distribution of payroll checks until 2
p.m on Thursday.
For some time, the Company had been working a 4-day
week, 10 hours daily from Monday through Thursday. On
August 25, 1994, Comptroller Connie McGuiness issued a
memorandum stating that checks were distributed on Thursday
as a convenience to employees not scheduled to work on Fri-
days. First-shift employees were paid before the end of that
shift, and second shift employees during the shift.83 On Octo-
ber 19, 1994, McGuiness issued a memorandum stating that
paychecks were distributed each Thursday at 2 p.m.84 Human
Resource Manager Davis testified that some employees cashed
their checks before Friday, and caused temporary overdraft
problems for the Company.
Employee Scott Rhodes, chairman of the Union’s negotiat-
ing committee, testified without contradiction that an employee
leaving early on Thursday morning, or taking a half day of
vacation, could formerly get his check by 11 a.m. on Thursday.
He did this by making the request to his supervisor, who would
call the payroll department. This practice changed, however.
Under the new procedure the employee had to notify his super-
visor a week in advance in order to get an early paycheck on
Thursday. Union Representative Chastain testified that he re-
ceived no notice of this change prior to its implementation.
I conclude that this change affected the employees’ working
conditions, and that its unilateral implementation violated Sec-
tion 8(a)(5).

82 C.P. Exh. 5.
83 G.C. Exh. 35.
84 G.C. Exh. 33.
F. The Alleged Unilateral Change From a 4-Day 10-Hour
Work Schedule to a 5-Day 8-Hour Schedule
1. Summary of the evidence
Respondent’s employee handbook provides that a workweek
consists of 40 hours, usually divided into 5 consecutive days of
8 hours each, or 4 consecutive days of 10 hours each, between
Monday and Saturday. The Company could provide different
work schedules for a department or individual employees “due
to business considerations.”85 Prior to May 1995, the Company
had utilized a 4-day 10-hour workweek for 4 or 5 years.86
At the parties’ first bargaining session, in December 1994,
the Union offered a contract proposal which provided that the
workweek would consist of 4 consecutive 10-hour days, Mon-
day through Thursday. The Company could schedule employ-
ees to work outside their regular shifts to meet production de-
mands or emergencies, with reasonable notice to the employees
and mutual agreement between the Company and the Union.87
There was minimal discussion of shift schedules prior to May
18, 1995.
Company President Lewis testified that, about 2 weeks be-
fore a bargaining session on May 18, 1995, Respondent decided
to change to a 5-day 8-hour work schedule, and that it did not
need the Union’s agreement because the Company had “re-
served that right.” Lewis instructed his attorney to inform the
Union of this change at the next bargaining session, “as a cour-
tesy.”
The May 18 bargaining session began at about 9 a.m., and
continued to about 4:30 p.m. Employee Franklin Newton testi-
fied that he went on break at 3 p.m. that day, and saw a posted
memorandum to all employees from Operations Manager Steve
Becker. The memorandum was dated May 18, and provided
that the Company had decided to discontinue the 4-day 10-hour
work week and institute a 5-day 8-hour workweek, effective
June 5, 1995.88
Union Representative Chastain testified that he did not learn
of the posting until after the bargaining session. At about 4
p.m. during the session, Chastain and Attorney Youell were
discussing a subject which Chastain described as the notice
required to make any kind of change. He denied that a specific
change to a 5-day 8-hour workweek was the subject of discus-
sion. Production manager Richard O’Reilly testified on direct
examination that Attorney Youell said that the Company was
going to change to a 5-day 8-hour week. On cross-
examination, O’Reilly denied that he had said this and in fact
affirmed that he liked “four tens also” (4 10-hour days). There
was no reaction from the Union, and O’Reilly could not say
that they actually heard it. Scott Rhodes heard O’Reilly say
that the Company was contemplating such a change, but the
statement was not said to anybody in particular. Union Com-
mittee Member Russel Lewis said that he heard that the Com-
pany was contemplating going to a 5-day 8-hour week, but
denied that the Union agreed to this.
Employee Scott Rhodes went to see Human Resource Man-
ager Carol Davis on the day after this bargaining session.
Davis told Rhodes that the Union had agreed to the change,
because nobody made a “big stink” about it. Davis agreed that
85 Jt. Exh. 1, p. 9.
86 Testimony of Company President Lewis.
87 G.C. Exh. 40; testimony of Union Representative Chastain.
88 R. Exh. 2.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1418
the posted notice says nothing about Union agreement with the
new policy.
2. Factual and legal conclusions
Respondent argues that the Union was given notice of the
change on May 18, and waived its rights by failing to demand
bargaining.
The evidence shows that Company President Lewis decided
to change to a 5-day 8-hour workweek about 2 weeks before
the May 18 bargaining session. It also shows that the Company
posted a notice to this effect on a bulletin board on or before 3
p.m. on May 18, before any discussion of the change had begun
in the bargaining session. In light of these indisputable facts,
the inconclusive testimony of what was said at 4 p.m. and
thereafter in the bargaining session is of little importance. It is
obvious that Respondent made the change on May 18, without
notice to the Union.
A unilateral change in work schedules constitutes a violation
of Section 8(a)(5). Millard Processing Services, 310 NLRB
421, 425 (1993). The Union did not waive its right to bargain
over this change. Any such waiver must be clear and explicit.
Timken Roller Bearing Co. v. NLRB, 325 F.2d 746, 751 (6th
Cir. 1963), cert. denied 376 U.S. 971 (1964). The evidence of
the May 18 bargaining session fails to establish any such clear
and explicit waiver. The employee handbook was not a con-
tract between the parties. The Union did not agree to the
change, and did not abandon its right to bargain over it. I con-
clude that Respondent unilaterally changed the employees’
work schedule and violated Section 8(a)(5).
G. The Alleged Unilateral Change in Overtime Policy, and
Warnings Issued to Employees for Violation of the New Policy
1. Summary of the evidence
The complaint alleges that Respondent, on about June 19,
1995, unilaterally changed its overtime policy, and thereafter
issued warnings to two employees for violation of the new
policy.
Three employees testified that overtime was voluntary. Su-
pervisors would ask employees on Wednesday if they wanted
to work overtime. There was no statement that work was man-
datory, and there were times when the Company could not se-
cure any overtime workers.89
Production President Lewis contended that overtime had al-
ways been mandatory. Although the Company first requested
volunteers, it could require an employee to work overtime if the
need arose. Lewis asserted that this requirement was set forth
in the employee handbook. The relevant handbook provision
states that overtime would normally be assigned to the em-
ployee doing the job during regular hours, and that the Com-
pany would attempt “to equalize overtime opportunities.”90
Production Manager Richard O’Reilly stated that there was a
past practice, in writing, whereby an employee with the least
amount of overtime was required to come in if asked. How-
ever, Reilly immediately testified that this policy “never had to
be used.”
On a Wednesday in June 1995, according to employees Alan
Kelly and David Porter, Supervisor Moelter asked them to
work overtime on Saturday. Both had prior commitments, and
declined. Moelter stated that the assignment was mandatory.

89 Testimony of Alan Kelly, David Porter, and Scott Rhodes.
90 Jt. Exh. 1, p. 11.
The employees offered to work a double shift on Friday, but
this was declined. They then said that they would take a “per-
sonal day” on Saturday. Neither showed up on Saturday, and
both received a warning for “failure to show up for scheduled
overtime.”91 Moelter testified that this was the first time he had
ever required an employee to work overtime. Union Represen-
tative Chastain affirmed that the Union did not received any
prior notification of this change.
2. Factual and legal conclusions
The employee handbook does not provide for mandatory
overtime, as asserted by Company President Lewis. There is
no mandatory provision; “equalizing overtime opportunities”
does not constitute mandatory overtime. Production Manager
O’Reilly’s contradictory testimony on this subject, and Moel-
ter’s admission that the action taken against Kelly and Porter
was the first occasion when overtime had been required, cast
further doubt on Respondent’s position. I credit the testimony
of the General Counsel’s witnesses that overtime had been
voluntary up to the time of the discipline administered to Kelly
and Porter.
I further conclude that this unilateral change in the method of
assigning overtime violated Section 8(a)(5) of the Act, as did
the warnings given to Kelly and Porter for their failure to obey
the Company’s unlawful new order pursuant to that rule. Duke
University, 315 NLRB 1291 (1995).
In accordance with my findings above, I make the following
CONCLUSIONS OF LAW
1. American Crane Corp. is an employer engaged commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Brotherhood of Boilermakers, Iron Ship
Builders, Blacksmiths, Forgers & Helpers, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act:
3. Respondent violated Section 8(a)(1) of the Act by engag-
ing in the following conduct:
(a) Coercively interrogating employees concerning their un-
ion activities.
(b) Threatening employees with plant closure if the employ-
ees selected the Union as their bargaining representative.
(c) More closely monitoring the work and movement of its
employees because of their union activities.
(d) Disparately enforcing a no-solicitation, no-distribution
rule in order to discourage union activities of its employees.
(e) Threatening employees with denial of reinstatement from
suspension because they filed unfair labor practice charges with
the Board.
(f) Transferring employees to different job assignments in
order to isolate them from other employees and discourage their
support for the Union.
(g) Telling employees that the reason for a new $5 charge for
lost I.D. cards was to keep “undesirables” out of the plant.
4. Respondent violated Section 8(a)(3) and (1) by engaging
in the following conduct:
(a) Warning Fred Clemmons on October 3, 1994, for alleg-
edly excessive “early outs” and “late ins,” by suspending him
on that date, and by discharging him on October 7, 1994, be-
cause of his union activities;
(b) Warning Zachary Givens for discussing the Union, for al-
leged poor work performance and not working, for alleged
mislocating and misnumbering parts, for suspending him for 3
91 G.C. Exhs. 8 and 9.
AMERICAN CRANE CORP. 1419
days on October 17, 1994, and for giving him an unsatisfactory
evaluation on November 2, all because of Givens’ union activi-
ties.
(c) Warning Cleatus Brown on October 19, 1994, for mislo-
cating parts, warning Brown on February 5, 1996, for “poor
work performance,” giving him an unsatisfactory evaluation on
February 17, 1996, telling him that it did not know whether it
could let allow him to testify pursuant to a Board subpoena92
and giving him unsatisfactory evaluation on August 19, 1996, a
warning for inefficiency and insubordination on September 25,
1996—all for union activity and, in the subpoena incident his
intended compliance with a Board subpoena.
(d) Suspending Johnny Thompson on July 17, 1995, and dis-
charging him on July 19, 1995, because of his union activities.
5. The following employees constitute a unit appropriate for
collective bargaining within the meaning of Section 9(b) of the
Act:

All production and maintenance employees employed by Re-
spondent at its Wilmington, North Carolina, facility, exclud-
ing all technical employees, professional employees, office
clerical employees, guards and supervisors as defined in the
Act.

6. On October 12, 1994, a majority of the employees in the
unit described above selected the Union as their collective-
bargaining representative in a Board conducted election, and,
since that time, the Union has been the exclusive representative
of the employees for the purpose of collective bargaining.
Commencing October 21, 1994, the Union has requested Re-
spondent to bargain collectively with it concerning the rates of
pay, wages, hours, and other terms of employment of the em-
ployees in the above-described unit.
7. Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act by engaging
in the following conduct.
(a) Unilaterally laying off bargaining unit employees on No-
vember 3, 1994, without giving the Union an opportunity to
bargain concerning the layoff, and transferring bargaining unit
employees into the vacancies created by the layoffs.
(b) Refusing to grant the Union’s safety expert access to the
plant on about October 28, 1994, to study operations and inves-
tigate safety hazards.
(c) On about October 19, 1994, unilaterally changing its pay-
roll deductions for employee purchases without giving the Un-
ion an opportunity to bargain.
(d) Unilaterally imposing a new requirement of a $5 charge
to employees for loss of their employee I.D. cards.
(e) On about December 5, 1994, unilaterally altering its prac-
tice of distributing payroll checks, without giving the union
notice and an opportunity to bargain.
(f) Unilaterally, about May 18, 1995, changing the work
schedules of its employees without giving the union notice and
an opportunity to bargain.
(g) Unilaterally, on about June 19, 1995, changing its over-
time policy without giving the union notice and an opportunity
to bargain.
(h) Issuing warnings to employees David Porter and Alan
Kelly on about June 19, 1995, pursuant to its new overtime
policy described above.

92 This conduct also violates Sec. 8(a)(4).
(i) Refusing to give the Union the reason for its discharge of
Johnny Thompson.
I further conclude that Respondent has engaged in “such
egregious or widespread misconduct so as to demonstrate a
general disregard for the employees’ fundamental statutory
rights.” Hickmott Foods, 242 NLRB 1357 (1979). Accord-
ingly, I shall recommend a broad order.
REMEDY
It having been found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom, and take certain affirmative ac-
tion designed to effectuate the policies of the Act.
It having been found that Respondent unlawfully suspended
Fred Clemmons on October 3, 1994, and discharged him on
October 7, 1994, and unlawfully suspended Johnny Thompson
on July 17, 1995, and discharged him on July 19, 1995, I shall
recommend that Respondent be required to offer them immedi-
ate reinstatement to their former positions, dismissing if neces-
sary any employee hired to fill the position, and to make them
whole for any loss of earnings they may have suffered by rea-
son Respondent’s unlawful conduct, by paying each of them a
sum of money equal to the amount he would have earned from
the date of his unlawful discharge to the date of an offer of
reinstatement, less net interim earnings during such period, to
be computed on a quarterly basis in the manner established by
the Board in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).93
I shall also recommend that Respondent be ordered to make
Zachery Givens whole for any earnings he may have lost be-
cause of Respondent’s unlawful suspension on him on October
17, 1994, in the manner described above.
I shall further recommend that Respondent be required to
expunge from its files all references to its discharges of Fred
Clemmons and Johnny Thompson, its suspension of Zachary
Givens, its warnings and other discipline listed above to Clem-
mons, Givens, Cleatus Brown, David Porter, and Alan Kelly,
and inform each of them in writing that this has been done, and
that the actions will not be used as the basis of any future disci-
pline of them.
Additional remedies are required to restore the status quo
ante and make all employees whole for any losses they may
have suffered. Duke University, 315 NLRB 1291 (1995). I
shall recommend that Respondent be required to reinstate all
bargaining unit employees which it unlawfully laid off on Oc-
tober 3, 1994, to their former positions, to the extent that it has
not already done so, and make whole all such employees for
any loss of earnings they may have suffered in the manner de-
scribed above. The names of such employees may be ascer-
tained in a supplemental compliance proceeding.
I shall further recommend that Respondent be required to
change its payroll deduction plan for employee payment of
purchases back to the plan which it unlawfully changed on
October 1994. On the authority of Ogle Protection Services,
183 NLRB 682 (1970), and the above-cited cases, Respondent
shall remit to each employee the amount which it unlawfully
93 Under New Horizons, interest is computed at the “short term Fed-
eral rate” for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621. Interest accrued before January 1, 1987 (the
effective date of the amendment) shall be computed as in Florida Steel
Corp., 281 NLRB 651 (1977).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1420
overcharged him since that time, and bargain with the Union
over this issue.
I shall also recommend that Respondent be required upon re-
quest by the Union to return to its former policy of allowing an
employee to leaving early on Thursday morning to get his pay-
check by 11 a.m. that day, and to bargain with the Union over
this issue.
I shall further recommend that Respondent be required to
discontinue its unlawfully imposed rule of mandatory overtime,
to return to its previous policy of voluntary overtime, and to
bargain with the Union over this issue.
I shall also recommend that Respondent, upon request by the
Union, allow a union-designated safety expert to enter the
plant, and investigate any work hazards which may exist
therein.
I shall also recommend that Respondent be required upon re-
quest by the Union to return to its former policy of scheduling 4
10-hour days of work per week, and to bargain with the Union
over this issue.
I shall further recommend that Respondent, on request by the
Union, give the latter the reason that it discharged Johnny
Thompson.
[Recommended Order omitted from publication.]