American Wire Products

National Labor Relations Board - Board Decisions

Feb 28, 1994

313 N.L.R.B. 989 (N.L.R.B. 1994)

989
313 NLRB No. 156
AMERICAN WIRE PRODUCTS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings. We also find no merit to
the Respondent’s contentions that the judge was biased against the
Respondent and that he refused to allow it to fully develop its theory
of the case at the hearing.
In affirming the judge’s finding that the Respondent’s mass dis-
charge of union supporters was unlawfully motivated, we find it un-
necessary to rely on the statement in the Respondent’s employee
handbook that ‘‘Our Company is a nonunion organization, and it is
our desire that we always will be.’’ In affirming the judge’s finding
that the Respondent failed to demonstrate that it would have dis-
charged the employees even if they had not engaged in union activi-
ties, we do not rely on his discussion of possible modifications of
the employment at will relationship under Kentucky state law.
We correct the judge’s citation to New Horizons for the Retarded,
283 NLRB 1173 (1987).
2 We shall modify the judge’s recommended Order to conform his
reinstatement language to that traditionally used by the Board. In ad-
dition, we shall substitute a new notice.
American Wire Products, Inc. and Roger Peach.
Case 9–CA–29933
March 3, 1994
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND TRUESDALE
On September 30, 1993, Administrative Law Judge
Richard H. Beddow Jr. issued the attached decision.
The Respondent filed exceptions.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions and to adopt the recommended
Order as modified.2
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Amer-
ican Wire Products, Inc., Frankfort, Kentucky, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Substitute the following for paragraph 2(a).
‘‘(a) Offer Tracy Brown, Keith Cook, Gary Estes,
Mark Freeman, Johnny Gentry, Garrett Neace, Roger
Peach, Jeff Rice, Jeff Smith, and Homer Stamper im-
mediate and full reinstatement to their former positions
of employment or, if those positions no longer exist,
to substantially equivalent positions, without prejudice
to their seniority or any other rights or privileges pre-
viously enjoyed, and make them whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against them, in the manner set forth in
the remedy section of the decision.’’
2. Substitute the attached notice for that of the ad-
ministrative law judge.
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
violated the National Labor Relations Act and has or-
dered 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 protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees that the plant
will close if they unionize.
WE WILL NOT terminate employees or otherwise dis-
criminate against them because of their union activities
or other protected concerted activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of rights guaranteed them by Section 7 of the Act.
WE WILL offer Tracy Brown, Keith Cook, Gary
Estes, Mark Freeman, Johnny Gentry, Garrett Neace,
Roger Peach, Jeff Rice, Jeff Smith, and Homer Stamp-
er immediate and full reinstatement to their former po-
sitions of employment or, if those positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or any other rights or privi-
leges previously enjoyed, and make them whole for
any loss of earnings and other benefits suffered as a
result of the discrimination against them, with interest.
WE WILL remove from our files any reference to the
terminations of the employees named above and notify
them in writing that this has been done and that evi-
dence of the unlawful terminations will not be used
against them in the future.
AMERICAN WIRE PRODUCTS, INC.
James E. Horner, Esq., for the General Counsel.
Donald P. Wagner, Esq., of Lexington, Kentucky, for the
Respondent.
990 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1992, unless otherwise indicated.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Frankfort, Kentucky, on June 15 through
17, 1993. Subsequent to an extension in the filing date, briefs
were filed by the parties. The proceeding is based on a
charge filed September 15, 1992,1 by Roger Peach, an indi-
vidual from Harrodsburg, Kentucky. The Regional Director’s
complaint dated October 23, 1992, alleges that Respondent
American Wire Products, Inc., of Frankfort, Kentucky, vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act by threatening to close Respondent’s plant because of
the employees’ union activities and by discharging 10 named
employees on September 8 and 9, 1992, because of union
and concerted activities by employees.
On a review of the entire record in this case and from my
observation of the witnesses and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a corporation engaged in the production of
fabricated metal products at its Frankfort facility. It annually
ships goods valued in excess of $50,000 from its location to
points outside Kentucky and it admits that at all times mate-
rial it has been an employer engaged in operations affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act. Although it does not admit that the International
Association of Machinists and Aerospace Workers, AFL–
CIO is a labor organization as defined in Section 2(5) of the
Act, a union official testified at the hearing regarding the
Union’s activities and I find that it validly meets the criteria
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Craig Chamberlain is Respondent’s president and majority
shareholder. On June 6, 1990, he purchased the assets and
took over the business of Southern Moldings, Inc., a com-
pany then in receivership and he initially retained the prede-
cessor’s 96 employees. The equipment Respondent purchased
from the bank was essentially antiquated and poorly main-
tained as was the plant structure itself. Some efforts have
been made to maintain, repair, or modernize equipment,
however, the plant itself (which is leased from the bank from
which the other assets were purchased) remains in poor con-
dition, especially with respect to significant roof leaks.
Carol Chamberlain, wife of the owner, serves the Com-
pany as director of human resources and, in November 1991,
Respondent hired Ken Krebs as director of operations. The
Company initially was unprofitable but it had sales growth
in 1991 and reached ‘‘marginal’’ status. In 1992 it continued
efforts for business growth and other improvement. It also
directed its attention to employee incentives and discipline
and it modified its attendance policy effective January 1,
1992, as described in a new employee handbook. Each em-
ployee was required to ‘‘certify’’ that he received a copy of
the handbook and that he understood that it was not a con-
tract of employment and that he could be terminated for any
reason at any time.
The attendance policy provided for termination after the
fifth absence or fourth instance of tardiness. The policy was
modified effective March 23, to clarify a 2-hour call-in pol-
icy. In June 1992 the Company instituted a policy where em-
ployees were not to leave their workstations even to go to
the restroom, without their supervisor’s permission. In July
a no-smoking drug testing policy was announced to become
effective September 15.
By August employee discontent began to grow over some
of the working conditions and two separate groups of em-
ployees, unknown to each other, began talking about and
considering union representation. When first-shift employees
learned that second-shift employees had already taken the
first step toward contacting union representatives, they de-
cided to join with the second-shift employees in seeking Ma-
chinists Union representation. Employee Jeff Rice then made
arrangements with Ron Harsh, a business representative from
the Machinists Union, and a meeting was held on August 24,
at the home of Tracy Brown and Gary Estes with Jeff Smith,
Roger Smith, and Jeff Rice also in attendance. After the
meeting these employees agreed to proceed with an organiz-
ing campaign and Harsh later delivered 100 blank authoriza-
tion cards to Brown’s house. The employees began distribut-
ing the cards among their coworkers. On September 2, Keith
Cook signed a card given to him by Rice. (Cook was also
the first employee to be discharged, 6 days after signing the
card.) On September 3, other authorization cards were signed
by Roger Peach, Brown Estes, and Rice, and on September
4, by Johnny Gentry. Jeff Smith testified that he signed a
union card which he gave to Homer Stamper 2 or 3 days be-
fore he was fired.
Mark Freeman was given a union card by Roger Peach the
day before he was fired. Freeman testified that he took the
card home where he signed it but never had a chance to turn
the card back in because he was then discharged with the
others.
On Tuesday afternoon, September 8, Respondent’s super-
visor held a regular weekly production meeting. Toward the
end of that meeting Operations Director Ken Krebs came in
and discussed some plant matters with the supervisors. Em-
ployee James Myers, a quality assurance auditor, and the
only nonsupervisor at the meeting, testified that Krebs told
the group that there were rumors of a union in the plant and
then warned that he had to deal with Chamberlain every day
and that ‘‘it was his considered opinion that if a union was
voted in, Craig (Chamberlain) would close the doors.’’ Krebs
then told the supervisors that ‘‘he had a list of people that
he didn’t feel were doing themselves or the company any
good being there’’ and asked them to get their list of such
employees and they would then compare their lists. After the
meeting ended, Myers went to Krebs’ office where they
talked privately. Myers brought up the subject of the Union
to Krebs, saying that he didn’t know much about it, and
didn’t even know if anything would ever come of it. Krebs
then asking Myers if Myers would feel comfortable telling
him ‘‘who was doing union activity.’’ Myers, who had
talked with Johnny Gentry (one of the terminated card sign-
ers) about the Union on September 4, declined to give Krebs
any answer and the conversation ended.
991AMERICAN WIRE PRODUCTS
The Respondent’s witnesses describe meetings between the
Chamberlains and Krebs in June, on September 2 and finally
on September 8 which traced Owner Chamberlain’s de-
scribed dissatisfaction with the way his policies and direc-
tions were being carried out on the plant floor. Chamberlain
testified that this dissatisfaction was directed at the super-
visors’ reluctance or inability at times to be as decisive and
to follow the directions and the practices of the business. He
said he then directed Krebs and his wife to identify and de-
velop those employees that they felt ‘‘if we were to termi-
nate them, that we could improve the overall effectiveness of
the floor,’’ either through hiring if required, new individuals,
or just no longer having those individuals.
Carol Chamberlain (C. Chamberlain) recalled that during
the September 2 meeting they did not identify any individ-
uals but her husband complained that he was tired of hearing
‘‘about situations on the plant floor.’’ When asked what kind
of situations was her husband referring to, she replied, ‘‘Peo-
ple with attendance problems, people that were always com-
plaining, people that were still complaining about the wage
scale, people that did not like the policies in effect.’’ When
questioned further about the complainants, C. Chamberlain
admitted that ‘‘no person came to me and specifically com-
plained,’’ and added that the complaints were relayed to her
by supervisors. C. Chamberlain testified that she discussed
people but did not recommend the name of even one em-
ployee to be fired, but said that Krebs read off the list of
10 names of those to be fired. Four second-shift employees
were terminated that Tuesday evening shortly after the meet-
ing. The other six first-shift employees were terminated the
next day shortly after their shifts began. The first terminated
was Keith Cook, a machine operator, who had worked at the
plant for 12 months before his discharge. He testified that at
exactly 5:30 p.m. (near the start of the second shift) he was
taken to Krebs’ office. There Krebs announced that he had
some good news and some bad news for Cook. The ‘‘good
news’’ for Cook was that Respondent was going to pay him
for the rest of the week. The ‘‘bad news’’ was that Cook
was fired, as of that moment. Krebs told Cook that Cook
‘‘didn’t fit their standards there at American Wire.’’ Cook
was stunned at the announcement and asked why was he
being fired, and added that he had made his production
quotas, and had not been late to work. All Krebs would reply
was ‘‘I don’t have to give you a reason; just leave the build-
ing.’’ Cook told Krebs he just didn’t understand why he was
being fired. Krebs told him, ‘‘I don’t have to give you a rea-
son. Now, get out of my building . . . just get your stuff and
get the hell out of my building.’’
The same ‘‘good news, bad news’’ scenario was repeated
with each dischargee and Krebs admitted keeping to that dia-
logue and further admitted that he would not give any reason
to the employees for their discharges; ‘‘unless they pressed
me for one. I wasn’t interested in spending any more time
discussing reasons.’’
Tracy Brown testified that after Krebs gave her the bad
news, she asked him, ‘‘If it had anything to do with my job
performance’’ and he told her: ‘‘It had nothing to do with
my job. He said he felt like he could find somebody better
to do the job that I did for the same amount of money.’’
When she asked for a written explanation of her discharge;
Krebs refused. Jeff Smith was told by Krebs that ‘‘It’s like
you trying to find another job. We’re trying to better our-
selves. The same basic comments from Krebs was the only
reason given to: Jeff Rice, Roger Peach, Garrett Neace, and
Gary Estes. When Estes asked Krebs if his discharge had
anything to do with his job performance, Krebs said ‘‘No,
you’re a good worker’’ and told Estes that under state law,
he did not have to give them a good reason for discharging
them. Krebs also told Stamper that his discharge had nothing
to do with his work performance. Even though Krebs told
Mark Freeman had done a good job with Respondent, Krebs
said ‘‘We don’t have any reason to fire you. We just feel
that the company is better off without you.’’ One of the last
to be fired was Johnny Gentry, who had heard what was
happening. When Krebs went through the ‘‘good news, bad
news’’ routine with Gentry, he added that Gentry’s discharge
didn’t have anything to do with Gentry’s job performance.
At that point Gentry accused Krebs of firing him over the
Union, Krebs response was to ‘‘give a smirking-looking
grin,’’ raise his hands, and shrug his shoulders.
Sales Manager Robert Miller observed the string of dis-
charges during the morning of September 9, and asked a
foreman what was happening and was told, ‘‘Krebs was hav-
ing a field day of firing people.’’ Miller testified that he
went to Chamberlain to find out what was going on because
Miller was concerned about the manpower requirements for
filling a large new Matsushita contract he had just obtained
and he was worried because Respondent had produced only
‘‘a small portion of what we could have’’ the previous
month because of ‘‘not having enough people to run the jobs
and then all of a sudden I find out that we are discharging
ten or twelve people. . . . I questioned that at the time we
let those people go we were desperate.’’ (Krebs also testified
that during the production meeting on the afternoon of Sep-
tember 8, a supervisor had ‘‘started off with telling me about
two or three customers that they knew they’re not going to
be able to make it if I’m terminating people.’’) Miller testi-
fied that both Chamberlain and Krebs were in Chamberlain’s
office and he asked them why they were they discharging
employees and one of the two (he could not recall which
one), replied, ‘‘There was a union movement and it had to
be nipped in the bud.’’
On brief the Respondent relates that by June 1992 Krebs
realized that there were two dozen people that he would rath-
er not have in the Company either because of lack of effort
of lack of interest in solving their own problems and, further-
more, that supervisors were using employee problems as ex-
cuses, instead of solving the problems. Some of the employ-
ees that Krebs identified had ‘‘attendance problems’’ and
some didn’t (these ‘‘attendance problems’’ were said to exist
not because they had gone beyond the policies in Respond-
ent’s handbook but because their was a possibility that they
might before the end of the year). Some were suggestion
award winners or had been recognized as having done well
in the first quarter of the year so that they got a company
‘‘leader’’ award; but ‘‘some’’ of these employees were al-
leged to be inconsistent and with no interest in improving
themselves or the area that they were working in. Respond-
ent also states that the supervisors were not helping Krebs
deal with these problems by formally advising the employees
of their shortcomings or terminating them for the negative
things that they were doing. Krebs’ actual selection ‘‘cri-
teria’’ was his opinion of those employees where he thought
the company could either hire someone who could do the job
992 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
as well, if not better, or the company would be better by just
no longer having that individual as a member of its work
force.
Krebs said he started his selection by first identifying em-
ployees whom he wanted to keep so he started with the top
50 percent of people that he would hire first. He said he
‘‘basically’’ focused his attention on the material handling
side of the business where he had the most problems and he
looked at each area within the material handling department
and asked himself if employees were going to be any better
6 months down the road. He got input from Carol Chamber-
lain only with regard to attendance because he was interested
on how close these employees were to being terminated any-
way because of attendance problems. He also got ‘‘feed-
back’’ (otherwise undocumented and uncorroborated) from
the supervisors and from the manager of the material han-
dling area. When Krebs told supervisors on September 8 that
terminations would be made in the next 24 hours, he also ad-
vised them that because within the next week the drug test-
ing and no-smoking policies would go into effect, there
could be problems on the floor and he wanted feedback from
the supervisors with regard to anticipated problems. He also
agreed that after the Union was mentioned, he advised the
group that the Company had a policy concerning unions in
its handbook and asserts that he said that there were laws
that protected workers and their right to unionize.
Although the Respondent made no initial attempt to con-
tend that those discharged were poor employees, it did ask
questions in this area on cross-examination and did introduce
a number of ‘‘Employee Warning Notice’’ forms on subjects
including tardiness, safety, absence, disobedience, and care-
lessness.
Otherwise, the record shows that two of the dischargees,
Tracy Brown and Garrett Neace, were recipients of awards
in the Company’s leadership program, a program first an-
nounced in January 1992. Only a small number of employees
could qualify for the leadership program because, according
to Carol Chamberlain, ‘‘our employees at that time were un-
able to meet all of those guidelines (these guidelines require-
ments were in the areas of attendance, production, safety,
suggestions, cleanliness, and quality), because many of the
employees had difficulty in ‘‘the area of attendance, produc-
tion suggestions, and quality.’’ Conversely, the Chamberlains
were reluctant to praise any of the ‘‘leaders’’ and they were
downgrading the selection by saying that some of the recipi-
ents ‘‘are average, some above average, and some outstand-
ing under the criteria . . . and, that Brown and Neace were
average.’’ When asked on cross-examination if the ‘‘leaders’’
were employees worth keeping, Craig Chamberlain replied,
‘‘I don’t have that regard for that program, no.’’ Krebs, the
originator of the leadership program also disavowed it as a
measure of employee worth.
The first recipients of the Leader program were announced
at a meeting of all the employees in late June and the recipi-
ents were given caps and T-shirts designating them as
A.W.P. Leaders.
The letter which accompanied the award said:
As an AWP Leader you are being recognized by Ken
Krebs for your leadership in the areas of attendance,
cleanliness, production, quality, safety and suggestions.
You more than the other workers have shown continu-
ous improvement and attention to each of these areas.
And improvement in each of these areas, through dis-
cipline and drive on your part, leads to valuable con-
tributions to your Company.
I now encourage you to encourage your fellow AWP
worker to strive to become and AWP leader just like
you. You are in a select group and are an example for
them to follow.
In addition to the leader program, Respondent had also re-
warded employees who had taken an interest in the Company
by making suggestions on ways to improve the Company
that were accepted by having their pictures taken (with
Chamberlain) and awarding a check for $25 in addition to
a T-shirt.
In the first 9 months of 1992, 176 suggestions were sub-
mitted from 54 different employees. These suggestions in-
cluded those from dischargees Brown (12), Cook (5), Estes
(6), Freeman (2), Neace (2), Peach (2), and Stamper. (Carol
Chamberlain, however, said only 10 persons submitted more
than one suggestion.) During this period 80 checks for $25
were given out for implemented suggestions. Several of these
checks went to Freeman, Neace, Peach, and Stamper. Several
of these employees (Estes and Freeman) also received award
checks for sponsoring a new employee who stayed more than
6 months, a period that becomes significant in the light of
Respondent’s turnover record. At the end of 1991 Respond-
ent had 109 production and maintenance employees. At the
end of 1992 there were 85 but, during 1992, 108 individual
employees were discharged.
Carol Chamberlain testified that during 1992 Respondent
had an evaluation program that was performed monthly with
respect to an employee’s attendance, their job, and a section
on the employee’s strength and weaknesses. Every dis-
chargee testified that they had received good reports on their
evaluations. No evidence to contradict this testimony was in-
troduced, because (according to the testimony of C. Cham-
berlain and Krebs) Respondent ‘‘threw away’’ all evalua-
tions. Otherwise, however, Glen Lesnau, a former manager
of metal fabrication, testified that shortly after he went to
work for Respondent on October 12, he was in the process
of considering one of the employees to be an assistant. An-
other manager indicated to Lesnau that this particular em-
ployee had some ‘‘behavioral irregularity,’’ which caused
Lesnau to look into the employee’s personnel file where he
observed a personal evaluation on that particular employee.
An examination of the personnel files of the 10 dis-
chargees reveals some warnings but also shows that they
were not candidates for outright discharge under its hand-
book policies, however, Krebs testified he didn’t bother to
review their personnel files before making the decision to
fire them.
The dischargees were among Respondent’s highest paid
employees and they all received an across-the-board raise 8
days before being terminated. According to C. Chamberlain,
the highest paid production employees are the toolmakers at
$13.75 per hour. Next came the operators of the roll-forming
machines like Gary Estes, who was paid $8.70 per hour,
after September 1. Then come the welders at $8.10 per hour.
Among the dischargees who were paid that rate were: Jeff
Smith, Jeff Rice, Homer Stamper, Johnny Gentry, and Gar-
rett Neace. The discharged employees testified that they met
993AMERICAN WIRE PRODUCTS
their production quotas, except for those occasions when
their machines broke down or when there was a lack of raw
materials for production.
Lastly, it is noted that dischargee Estes spoke with Krebs
on three occasions where he sought to move to improve him-
self and get a better job and was successful in moving from
the mig welder to roll forming in January 1992. He also
alerted his supervisor, Krebs, and C. Chamberlain to an em-
ployee who was using drugs in the bathroom, but no action
was taken by Respondent.
III. DISCUSSION
The issues in this case arose when the Respondent sud-
denly terminated 10 employees without cause, telling them
that it didn’t have to give a reason or otherwise telling them
that the Company would be better off finding someone better
to do the job for the same money. These discharges occurred
15 days after an initial union organizational meeting at the
home of 2 of the dischargees and shortly after 9 of the 10
dischargees had signed union authorization cards. Although
one union representative testified in corroboration of the start
of union activity, after the discharges all organizational
ceased, the Union apparently abandoned the discharged em-
ployees and they pursued a charge with the Board on their
own.
A. Alleged Threat and Credibility
James Myers credibly testified that while he was at a
meeting with Manager Kreb and a group of supervisors on
September 8, Krebs said he had heard rumors of a union in
the plant and that it was his considered opinion that if a
union was voted in Owner Chamberlain, who he had to deal
with every day, would close the plant. As pointed out by the
General Counsel, Myers is still working for Respondent as
a rank-and-file employee (not a supervisor), his testimony
was adverse to Respondent and, therefore, he placed himself
in considerable peril of economic reprisal and for that reason
his testimony is not likely to be false. Otherwise, I find that
he testified with a believable demeanor and that his overall
narrative of the meeting with supervisors and a subsequent
meeting with Krebs is highly coherent and plausible. Krebs
on the other hand presented a brash demeanor and was impa-
tient with detail, yet he admitted at least the substance of
what Myers said he heard, by testifying (with uncharac-
teristically obscure verbiage), to the effect that if problems
with respect to the ‘‘labor’’ content of the products being
produced in material handling could not be brought down,
the Company could not continue to make investments in this
portion of the business and that could ultimately lead to the
entire operation going down. Under these circumstances, I
find that Myer’s testimony should be credited over Krebs in
all aspects where their testimony may differ.
Otherwise, the Respondent contends that the statement by
Krebs was mere speculation or personal opinion and was de
minimis. Here, although it is probable that Kreb’s initially
and carelessly thought he was just speaking to a group of su-
pervisors, he otherwise attempted to attribute portions of his
later meeting with Myers to the meeting with the supervisors,
claiming that Myer’s brought up the subject of a union in the
plant. Although Myers agrees he brought up the ‘‘union’’ at
the second meeting, I find that Krebs originated the subject
in the supervisors’ meeting. Krebs did not qualify the state-
ment as ‘‘only’’ his personal opinion but embellished his
comment with ‘‘considered’’ opinion and the implied fact
that he knew the owner’s thoughts well, words designed to
give credence to his statement as a fact, not a mere personal
prediction. Also, I find the fact that Myers did not mention
the second meeting in his affidavit to be immaterial, see
Gold Circle Department Stores, 207 NLRB 1005 (1973).
Here, the credible threat of plant closure if a union came in
was made to an employee and it was not credibly tied in
with objective facts regarding economic conditions, and I
find that it was objectionable conduct which violates Section
8(a)(1) of the Act, as alleged.
Inasmuch as Krebs also gave testimony in which he denied
knowledge of union activity and asserts other reasons for ter-
minating the 10 involved employees, his testimony must be
evaluated in determining the Respondent’s true motivation
and reasons, some further comment regarding Krebs’ de-
meanor and credibility is appropriate at this point.
Gentry, the last employee fired, testified that when he ac-
cused Krebs of doing it because of the Union, Krebs
smirked, shrugged his shoulders, and raised his hands (Gen-
try demonstrated how Krebs had reacted). I observed that
while Krebs (who had not observed Gentry’s testimony) was
testifying in response to another area of inquiring, he re-
sponded with physical movements which duplicated Gentry’s
description and demonstration. I find that this confirms and
makes Gentry’s testimony appear to be highly believable. I
therefore credit Gentry’s testimony in this respect and I find
that Krebs’ arrogant response to Gentry and his lack of a de-
nial is an element which supports an inference that Gentry’s
accusation was accurate.
Billy Willis is a former factory employee who was injured
on the job in 1992. She was off work for 3 weeks, placed
on light duty as a receptionist when she returned, and then
terminated about August 22, in accordance with Respond-
ent’s policy because she could not physically return to her
former job. She testified extensively regarding Krebs’ deport-
ment at the plant and indicated that Kreb’s consistently be-
have boorishly: telling employees they were stupid morons,
idiots, were all replaceable, any moron could do this job, did
not care if they all hated him, and that the men were ‘‘a
bunch of pussys.’’ At a meeting he also spit food on the
floor and hollered for the employees to get their ‘‘goddamn
asses up there, sit down, and shut up.’’ He then proceeded
to address the employees, including a couple of religious
women with repeated use of the phrase ‘‘fuck this,’’ and he
was described as a hostile, arrogant man that used that
phrase or word as part of his everyday language.
This credible testimony is corroborative in nature and
tends to demonstrate that Krebs in fact had a hostile, arro-
gant demeanor which embraced a substantial disrespect for
employees in general. This disrespect relates to Krebs’ as-
serted reasons for his actions and his denials that certain
events described by other witnesses occurred. This demeanor,
although not as flagrant during his testimony, was readily ob-
servable and reflects adversely on his overall credibility.
Under these circumstances, I will not credit his testimony
where it conflicts with the otherwise credible testimony of
other witnesses, with circumstantial evidence, or with influ-
ences draw from other facts of record.
994 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although Miller left the Respondent in January 1993 after Cham-
berlain proposed to reduce his compensation. I do not find that this
rises to a level that would infer a reason to fabricate testimony on
Miller’s part. Otherwise, Miller’s demeanor and testimony were
credible and I find the fact that he remained to observe the rest of
the hearing after his own testimony to be irrelevant inasmuch as he
was not observed to be in an obvious close relationship with any of
the alleged discriminatees.
B. The Mass Discharge
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ee’s union or other protected, concerted activities were a mo-
tivating factor in the employer’s decision to terminate him.
Here, the record shows that Respondent’s management was
aware of union activity prior to the actual discharges. Spe-
cifically, knowledge of union activity was admitted to by
Krebs in the supervisor’s meeting on the afternoon of Sep-
tember 8, prior to the first discharges. That same afternoon,
Krebs asked Myers if he knew the identity of any union ac-
tivist but did not pursue the matter when Myers didn’t an-
swer. As noted, when Gentry was terminated on September
9, Krebs did not deny his accusation that it was because of
the union and I find that Krebs’ smirk and shrug (in the con-
text of Krebs arrogantness and his statements that those em-
ployees were ‘‘at will’’ and he didn’t have to give a reason)
is an implicit admission that Gentry was correct. Also, I
credit Sales Manager Miller’s testimony that on September 9
either Owner Chamberlain or Krebs answered his questions
about why they were firing people when they had a new
order and didn’t have enough people to run last months job
with the response that ‘‘there was a union improvement that
had to be nipped in the bud.’’2
In addition to these incidents demonstrated by direct evi-
dence, there are a number of factors demonstrated by persua-
sive circumstantial evidence which satisfies the traditional in-
dicia by which the Board may infer antiunion motivation on
the part of Respondent. These inferences are further sup-
ported by Manager Krebs’ statement (and illegal threat) that
the owner would close the plant if a union came in. This
conclusion is supplemented by Respondent’s attitude towards
union as expressed in its January 1992 handbook (which
each employee had to sign and agree that he was expected
to observe all the policies), which states: ‘‘Our Company is
a non-union organization and it is our desire that we always
will be.’’ Interestingly, this same section request that if the
employees have any questions relating to the subject of
unions, they be brought to the attention of a supervisor.
Here, although there is no direct evidence that any particu-
lar individual was identified to management as a union sup-
porter, I infer that one or more persons did respond to the
‘‘request’’ in the handbook and did bring questions and in-
formation of this nature to supervisors in the period between
the first union organization meeting on August 24, and Re-
spondent’s September 8 decision to terminate 10 employees.
Although the dischargees made no overt efforts to solicit au-
thorization cards on the plant floor, they did distribute and
sign cards in the parking lot on and after September 2 and
a total of about 30 signed cards were obtained in response
to these initial solicitations. I infer that it is more than coin-
cidental that most of the discharges were the initiators of that
organizing campaign or had talked about and handed out nu-
merous authorization cards. Moreover, all but Garrett Neace
had executed authorization cards themselves and also had en-
couraged others to sign. Neace testified he had not yet been
given a card when he was fired but that he had frequently
discussed and expressed his belief that a union was needed
with a group of about 10 other welders, both before and after
work and in the cafeteria at lunchtime.
As pointed out by the General Counsel, the Board and the
courts have long held that, absent a reasonable explanation,
the disproportion between the number of union and nonunion
employees laid off or discharged may be persuasive evidence
of discrimination; citing Otis L. Broyhill Furniture Co., 94
NLRB 1452, 1453 (1951); NLRB v. Dinion Coil Co., 201
F.2d 484, 486 (2d Cir. 1952); NLRB v. Shedd-Brown Mfg.
Co., 213 F.2d 163, 174 (7th Cir. 1954); Maxon Construction
Co., 112 NLRB 444, 458 (1955); Ballou Brick Co. v. NLRB,
798 F.2d 339, 343 (8th Cir. 1986), where the court noted that
it is not necessary for the General Counsel to prove the em-
ployer’s knowledge of a specific employee’s opinion as to
the union, when there is a mass layoff for the unlawful pur-
pose of discouraging union membership. See also Alliance
Rubber Co., 286 NLRB 645, 647 (1987); and Superior Coal
Co., 295 NLRB 439, 455–458 (1989).
Here, the evidence shows that only 15 days lapsed from
the first union meeting at the home of Brown and Estes until
the discharges began. Although Krebs claimed that he had
been dissatisfied with a number of unspecified employees
since June 1992, he admitted that he did not draw up the list
of names of employees to be discharged until ‘‘the first part
of September,’’ the time when union cards were being cir-
culated. Under these circumstances the timing and close
proximity of union activity and a mass discharge of union
adherents is indicative of antiunion motivation; see Mini
Togs, Inc., 304 NLRB 644 at 648 (1991); Vemco, Inc., 304
NLRB 911, 912 (1991). This is especially true where the
timing of the discharges is not explainable (as further dis-
cussed below).
Here, Respondent’s actions in firing people on September
8, immediately after selecting 10 employees that it assertly
felt it could do without, despite its further assertion that these
persons were selected as a result of an ongoing evaluation
that had begun in June, is completely implausible in view of
the fact that they were given absolutely no warning or notice,
were fired in midweek (with full pay for the week), shortly
after starting their shift and were not allowed to finish their
day, let alone the 3 or 4 days left in the week. The haste
with which Respondent acted is emphasized by Krebs’ treat-
ment of employee Cook who was completely surprised by
the action because he thought (accurately), that he had met
production quotas and attendance guidelines, and questioned
why he was fired and was told by Krebs: ‘‘just leave the
building.’’ ‘‘I don’t have to give you a reason. Now, get out
of my building . . . just get your stuff and get the hell out
of my building,’’ because, as Krebs admitted ‘‘I wasn’t inter-
ested in spending any more time discussing reasons.’’
The haste with which Krebs acted (with the concurrence
or encouragement of Owner Chamberlain) was so extreme
that Carol Chamberlain, the Company’s personnel manager,
who had supplied Krebs with attendance records, said did not
know on September 8 the names or reasons why these 10
employees were selected. Accordingly, I find that this haste
995AMERICAN WIRE PRODUCTS
3 In some instances some of these employees received warning
slips that indicated that because of tardiness or absence they would
have to make a considerable effort to improve during the remainder
of 1992 if they were to remain employed. Yet, as otherwise dis-
cussed herein, they did not actually reach the level of violation that
would call for discharge under the rules in the 1992 handbook and
they were not specifically discharged for this reason. Also, Stamper
was given a first warning for disobedience on September 2 which
stated ‘‘the next time you will be automatically discharged,’’ for
leaving his workstation without approval (he went to the men’s room
after he could not find a supervisor).
and secrecy must be inferred to be because of the unlawful
motivation behind Respondent’s action.
Although the Respondent’s past practices evidenced that
reasons were set out in company records to explain why dis-
charges or separations occurred, this was not done with these
10 dischargees and no reason was placed on their records or
was given to the employees other than Kreb’s’ bland state-
ments to some that he could find someone better to do the
job. This failure to give a meaningful reason is indication
that the true reason is invalid, see Accurate Die Casting Co.,
292 NLRB 982, 992 (1989), and the failure of any supervisor
or manager to warn of alleged deficiencies prior to dis-
charge3 is also a factor that supports an inference that Re-
spondent’s reason that it wanted to find a ‘‘better’’ person
is pretextual and that its real motivation was illegal in nature.
Compare Federal Screw Works, 310 NLRB 1131 (1993),
where employees were given a pretextual 30-day notice for
a purported opportunity to make corrections relative to their
‘‘poor’’ evaluations before ‘‘the possibility of discharge.’’
As discussed further below, the Respondent’s failure to
give any plausible, objective reason in defense of its actions
and its attempted reliance on Kentucky’s ‘‘at will’’ law
under which it purports that employees can be validly fired
for no reason is a further indication of the pretextual nature
of the ‘‘no reason’’ claim and is indicative that the real rea-
son was a ‘‘bad’’ reason. Under all these circumstances,
Krebs’ denial of relevant knowledge is neither credible nor
persuasive and I find that the Respondent knew that union
activity had just started at its plant, it had some idea of who
was involved and it was motivated by its knowledge of a
‘‘union movement’’ that ‘‘had to be nipped in the bud,’’ to
discharge the suspected employees.
Otherwise, when circumstances demonstrate a mass dis-
charge for unlawful purposes, as here, it is unnecessary to
show employer knowledge of union activity of each specific
dischargee, see the Federal Screw case supra, and I conclude
that the General Counsel has established a strong prima facie
showing that union activity was a motivating factor in the
Respondent’s decision to terminate this group of employees.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Once the General Counsel establishes a prima facie case,
the burden shifts to the Respondent to show that it would
have taken the same action even in the absence of union con-
siderations. In light of the General Counsel’s strong prima
facie showing, the Respondent’s burden here is substantial,
see Vemco, Inc., 304 NLRB 911 (1991). Accordingly, the
testimony will be discussed and the record evaluated to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried his overall burden.
Respondent contends that the discharges would have taken
place even in the absence of union activity because the em-
ployees were ‘‘at-will’’ employees who could be discharged
at any time for any reason, that it was ‘‘privilege’’ to dis-
charge them for the good of the business whether or nor they
had violated company policies such as those on attendance,
and that Krebs merely decided to terminate these 10 persons
he had selected because he thought the Company could hire
someone to do the job as well, if not better.
Paradoxically, Respondent contends that the certificate
signed by each employee that he received an employee hand-
book is not a ‘‘contract’’ giving the employee any employ-
ment rights yet, at the same time, is an understanding on
which the employer may rely for the right to terminate ‘‘for
any reason at any time.’’ On brief, Respondent attempts to
avail itself of benefits of the employees’ ‘‘certification’’ by
asserting that it therefore was privileged to discharge em-
ployees whether or not they had violated any specific policy
in the handbook, such as the attendance policy.
Here, it appears that Respondent had misunderstood or
misapplied its asserted ‘‘privilege’’ under Kentucky law. Al-
though ‘‘at-will’’ employees could traditionally be dis-
charged for ‘‘good cause, no cause, or a cause that some
may view as morally indefensible’’ that privilege does not
extend to dischargees that otherwise fall within the jurisdic-
tion of the National Labor Relations Act.
Moreover, it appears that even under Kentucky law, the
‘‘at-will’’ relationship can be modified where, as here, the
employer provides the employees with a handbook with cat-
egories of offenses, provisions that establish cause for re-
peated offense, and a system for progressive discipline, see
Norris Filson Care Home Ltd. (Kentucky Commonwealth
Court of Appeals, 1990), 115 LC § 56,244, which finds that
under such circumstances, there is evidence of a probable
contract that requires discharge for cause only.
Respondent’s self-serving disclaimer aside, its handbook
clearly sets forth a progressive discipline system that Krebs
chose to ignore in his apparent zeal to purge the Company
of union sympathies. The Respondent also chose to ignore
the assertation in its handbook that: ‘‘Management is com-
mitted to making all reasonable efforts to maintain continu-
ous employment.’’
Here, none of the discharged employees had exceeded the
disciplinary guidelines and two, Brown and Neace, not only
had no apparent warnings but, in fact, were selected as re-
cipients of company ‘‘Leader’’ recognition in late June. Yet,
only a little more than 2 months later, they were selected by
Krebs to be purged as persons who could be replaced by
anyone hired off the street. Despite the Respondent’s strange
belittlement of its own awards programs that recognized
Brown and Neace, as well as Cook, Estes, Freeman, Stamp-
er, and Peach, none of the employees were shown to be less
than average employees and, in fact, they basically all had
good productivity records and several were told at their dis-
charge that they were good workers or that the discharge had
nothing to do with their work performance, just that the
Company felt it would be better off without them.
Krebs took full responsibility for the selection of the peo-
ple, yet he specifically did not examine the personnel files
of any of his candidates other than to get attendance data
996 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from Carol Chamberlain. Although one person was one ab-
sence short of the 5 handbook number for discharge, he had
not exceeded that number and the others were not untypical
of the overall work force. At the most, Krebs relied upon his
subjective feelings that these employees were inconsistent or
were not interested in improving themselves or the area they
were working in. These are not objective reasons and in fact
are refuted to a substantial degree by the work records of
many in the group. Significantly, Krebs did have an available
objective tool under which he could evaluate employees dur-
ing the summer of 1992 when he assertedly became specifi-
cally concerned with the idea to purge a number of the less
desirable employees. This tool was the employee evaluations,
evaluations that Krebs dismisses as being merely a commu-
nication device between management and employees. The
employees all credibly testified they received good evalua-
tions, however, at some point in time, Respondent assertedly
just ‘‘threw away’’ all evaluations and none were provided
in response to the General Counsel’s subpoena. It appears
likely, however, that some evaluations were still in personnel
files as late as October 1992, when the manager of metal
fabrication, Glen Lesnau, credibly testified that he saw the
evaluation of an employee in a personnel file when he was
investigating one of his worker’s behavioral history.
No actual replacements had been interviewed or selected
at the time of the discharge and, in view of Respondent’s ex-
treme turnover rate (numerically over 100 percent, in 1992),
and its obvious inabilities or difficulties in hiring and retain-
ing employees (note its ‘‘sponsor’’ awards to employees who
get another person to stay at least 6 months), Krebs asserted
premise for his and the Company’s actions appears to be in-
herently incredible. This is especially true when it is consid-
ered in the light of the fact that Respondent was short of
workers for its regular production in August 1992 had just
received a new order, the largest order in its history (which
ultimately proved to be a $1.8 million-per-year order), that
more than doubled Respondent’s metal-stamping operations.
After confirmation of the order, Chamberlain held a meet-
ing of all employees and managerial personnel and an-
nounced that this new order would mean hiring 13 to 15 ad-
ditional employees. As noted above, Sales Manager Miller,
who had obtained this new order, strongly protested about
the effect of the termination of experienced people when Re-
spondent didn’t have enough people to run its existing orders
and these concerns are not answered by Respondent’s expla-
nation that it didn’t reach peak production on the new order
until November and that the dischargees worked in ‘‘material
handling’’ not in the ‘‘metal fabrication’’ department that
handled the new order. Here, the record shows that Smith
was a welder and fabricator since 1988 (with the predecessor
company), Brown was initially inexperienced but was suc-
cessfully trained to be a resistance welder, Cook was a ma-
chine operator experienced on at least five different ma-
chines, Stamper and Rice were welders, Estes was a roll
former, Peach was a mesh welder and maintenance operator,
Freeman was a machine operator, Gentry was a mesh welder
(also with the predecessor company), and Neace was a weld-
er and fabricator (also with the predecessor company). Ac-
cordingly, Respondent’s claim that these experienced em-
ployees were from another department fails to explain why
they wouldn’t be as suitable for the needed new positions as
persons hired off the street. Otherwise, Respondent offers no
plausible reason why it chose the last shift Tuesday (and first
shift Wednesday) to suddenly implement a discharge pro-
gram it has purportedly been planning for several months.
There is no plausible reason offered to show why it would
blindly go forward with these plans (during midweek) when
it was faced with new orders and a need for a significantly
larger work force. And, with Respondent’s extreme record of
employee turnover during all of 1992, Respondent was still
advertising for welders in January 1993, when Carol Cham-
berlain declined to consider Homer Stamper for reemploy-
ment.
These surrounding circumstances, if anything, show Re-
spondent’s reasons to be pretextual and otherwise to be so
unpersuasive that Respondent clearly does not satisfy its bur-
den to show that it would have discharged these employees
even in the absence of union activity. Here, despite the exist-
ence of some ‘‘objective’’ criteria based on evaluation (that
it ‘‘threw away’’ and a handbook system of progressive dis-
cipline), the Respondent chose to rely on Krebs subjective
opinion that employees ‘‘better for the company’’ could be
found on the outside. In substance, Respondent’s justification
is that it does not need a reason because the dischargees
were ‘‘at will’’ employees and that it wanted to take a
chance on getting better employees off the street. Here, it
would appear that Respondent’s justification’’ better for the
company’’ is an euphemism for employees ‘‘who were not
union activist or supporters.’’ This ‘‘reason’’ is pretextual
and it otherwise does not satisfy Respondent’s burden to
rebut the General Counsel’s strong prima facie showing. Ac-
cordingly, I conclude that the General Counsel has met his
overall burden and shown that the Respondent’s mass dis-
charge of employees at the start of an abortive union cam-
paign violated Section 8(a)(1) and (3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By threatening an employee that the owner would close
the business if a union came in, Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(1)
of the Act.
4. By discharging Tracy Brown, Keith Cook, Gary Estes,
and Jeff Rice on September 8, 1992, and Mark Freeman,
Johnny Gentry, Garrett Neace, Roger Peach, Jeff Smith, and
Homer Stamper on September 9, 1992, because of the em-
ployees’ union activities, Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find it necessary to order it to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate each of
the discriminatees to their former jobs or substantially equiv-
alent positions, dismissing, if necessary, any temporary em-
ployees or employees hired subsequently, without prejudice
to their seniority or other rights and privileges previously en-
997AMERICAN WIRE PRODUCTS
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
joyed, and make them whole for any loss of earnings they
may have suffered because of the discrimination practiced
against them by payment to them a sum of money equal to
that which they normally would have earned from the date
of the discrimination to the date or reinstatement in accord-
ance with method set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest as computed in New Hori-
zons for the Retarded, 283 NLRB 1773 (1987).4
The Respondent also shall be ordered to expunge from its
files any reference to the illegal discharges and notify them
in writing that this has been done and that evidence of the
unlawful discharges will not be used as a basis for future
personnel action against them. Otherwise, it is not considered
necessary to issue a broad Order.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, American Wire Products, Inc., Frankfort,
Kentucky, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening any employee with plant closure if a union
comes in.
(b) Discharging any employee for activity protected by
Section 7 of the Act.
(c) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Tracy Brown, Keith Cook, Gary Estes, Mark
Freeman, Johnny Gentry, Garrett Neace, Roger Peach, Jeff
Rice, Jeff Smith, and Homer Stamper immediate and full re-
instatement and make them whole for the losses they in-
curred as a result of the discrimination against them in the
manner specified in the remedy section of this decision.
(b) Remove from its files any reference to their discharges
and notify them in writing that this has been done and that
evidence of the unlawful discharge will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Frankfort, Kentucky facility copies of the
attached notice marked ‘‘Appendix.’’6 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by an authorized representative of Re-
spondent, shall be posted by Respondent immediately upon
receipt and maintained for 60 consecutive days, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
Respondent to ensure that said notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.