Baumgardner Co.

National Labor Relations Board - Board Decisions

May 12, 1988

288 N.L.R.B. 977 (N.L.R.B. 1988)

BAUMGARDNER Co. 977
Elmer R. Baumgardner t/a Baumgardner Company
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, Local Union No. 32, AFL-CI0.1
Cases 6-CA-19251, 6-CA-19564, 2 and 6-RC-
9687
May 12, 1988
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN STEPHENS AND MEMBERS
BABSON AND CRACRAFT
On September 2, 1987, Administrative Law
Judge Harold Bernard Jr. issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed an op-
position brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, 3 and
conclusions4 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
On November 2, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO. Accordingly, the caption has been amended to
reflect that change.
2 We correct the judge's inadvertent omission of this case number.
3 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.24 362 (3d Cir 1951).
We have carefully examined the record and find no basis for reversing
the findings.
In adopting the judge's finding that Respondent engaged in objection-
able conduct, we rely only on the conduct the judge found objectionable
that occurred during the critical period. We adopt the judge's finding
that owner Baumgardner's conversation with employee Heiman created
the impression of surveillance in violation of the Act We find that the
Respondent's reliance on Schrementi Bros., Inc., 179 NLRB 853 (1969), is
not persuasive because here there is no evidence that employee Heiman
was an open supporter of the Union. Absent such evidence, it is reasona-
ble to infer that Heiman might assume from Baumgardner's statement
that his union sympathies or activities, whatever they were, were the sub-
ject of investigation. We find it unnecessary to pass on the additional al-
leged incidents of the creation of an unlawful impression of surveillance
the judge discusses, as findings of such additional violations would be cu-
mulative and would affect the Order.
4 In adopting the judge's conclusion that the Respondent discharged
employee Welsh in violation of Sec. 8(a)(3) and (1), we find that the cir-
cumstances here, including the Respondent's general knowledge of union
activity among its employees, the general timing of the discharge, the Re-
spondent's 8(a)(1) conduct, and the Respondent's pretextual reason for
the discharge, support an inference of knowledge of Welsh's union activi-
ties See, e.g., Abbey's Transportation Service, 284 NLRB 696 (1987) See
also Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir.
1966). We, therefore, find it unnecessary to pass on the judge's reliance
on the "small plant" doctrine.
judge and orders that the Respondent, Elmer R.
Baumgardner t/a Baumgardner Company, Fayette-
ville, Pennsylvania, its officers, agents, successors,
and assigns, shall take the action set forth in the
Order.
IT IS FURTHER ORDERED in Case 6-RC-9687 that
the election held on May 29, 1986, is set aside and
the case is remanded to the Regional Director for
Region 6, who shall conduct a new election in the
appropriate unit at such time as he deems the cir-
cumstances permit the free choice of a bargaining
representative.
[Direction of Second Election omitted from pub-
lication.]
Joseph M McDermott, Esq. and Ronald J. Anchykovitch
Esq., for the General Counsel.
Jan G. Sukove, Esq., of Chambersburg, Pennsylvania for
Respondent.
Jeffrey Neil Young, Esq., of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD, JR , Administrative Law Judge. I
heard these consolidated cases in April and May 1987 at
Gettysburgh and then Chambersburg, Pennsylvania, pur-
suant to complaint (and later order consolidating there-
with hearing on objections to election in Case 6-RC-
9687) alleging Respondent engaged in unlawful interro-
gation of employees concerning union activities, threat-
ened employees with more onerous working conditions,
bankruptcy, and plant closing if employees chose union
representation, created the impression it was engaged in
surveillance of employees' union activities, and dis-
charged employee Melvin Welsh Jr because of his sup-
port for union representation, thereby violating Section
8(a)(1) and (3) of the Act and, further interfering with
the conduct of the representation election held 29 May
1986 requiring that the results thereof' be set aside and a
new election conducted. Based on the entire record in
this case, including the demeanor of witnesses and co-
gently written briefs filed by the parties, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION STATUS
Respondent, a sole proprietorship with facilities locat-
ed in Fayetteville, Pennsylvania, cleans used motor oil
and sells it. Annual sales directly to points outside Penn-
sylvania exceed $50,000, and I find as admitted, that Re-
spondent is an employer engaged in commerce within
the meaning Of Section 2(2), (6), and (7) of the Act. The
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act. As further admitted, and as the
record facts herein demonstrate, I find that owner Elmer
Ten votes cast for Petitioner, 14 against. (G,C. Exh. 14.)
288 NLRB No. 109
978 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Baumgardner, Plant Supervisor Junior Clugston, and
General Plant Process Foreman Ken Shearer are super-
visors and agents of Respondent within the meaning of
Section 2(11) and (13) of the Act.
H. THE UNFAIR LABOR PRACTICES
A. Background
Respondent's facilities consist of three main buildings
housing its office, 2 shops, where 14 mechanics work,
and a screen shack—control room where the used oil is
cooked, screened, and purified and where 12 employees
work. In addition to Elmer Baumgardner, Clugston, and
Shearer, the operations are further supervised by Baum-
gardner's son Dick (Dirk), daughter Lynn, and Anna
Gamby, operations officer, all the foregoing combining
with a reasonably drawn impression from the record as a
whole to indicate a tightly knit, closely run, compactly
sized enterprise.
B. Employee Union Activities
Screen shack employees Paul Gabert, Fred Wade,
Charles Gordon Jr., and Richard Smelser discussed the
advantages of union representation late March 1986 in
the drivers' room leading to Gabert contacting Teamster
Local 32 President Philip Crawford on 7 April to discuss
plant working conditions. Wade and Gabert met with
Crawford on 9 April, discussed matters with him regard-
ing employment concerns, and took union authorization
cards back to the plant. The two circulated in the plant
when not working, on break time, and when just getting
off work, and secured 13-signed cards from coempIoyees.
By 12 April they brought back 12 signed cards to Craw-
ford's office, and by 16 April, Crawford was given a
total of 15 cards.
C. Union Request for Recognition
On 16 April Crawford wrote Baumgardner informing
him a majority of employees had signed union authoriza-
tion cards and requesting he sit down to negotiate a con-
tract on behalf of the plant operation employees. (G.C.
Exh 2(a)) He never received a response.
D. Respondent's Interrogation and Threats of Plant
Closing Through Supervisor Ken Shearer
Paul Gabert testified that on 17 Apnl the delivery date
to Respondent of Crawford's letter seeking recognition
and negotiations—at around 1 p.m. Plant Processing
Foreman Ken Shearer called him at home and asked him
if anyone had talked to him about the Union, approached
or confronted him about it. Shearer told Gabert that
Elmer Baumgardner was walking through the plant with
the paper (letter) he had received from the Union stating
that Baumgardner would never let the Union in, that he
would close the plant down before he would ever let the
Union come in, or recognize the Union. Gabert testified
that Shearer asked him how he felt about the Union and
when Gabert told him he was strongly for it Shearer
cursed, "I'll be a sonofbitch" and hung up. He further
testified that Shearer entered the screen shack control
room that afternoon and told Gabert in the presence of
another employee, Lee Dile, that Baumgardner got the
letter, was very upset, and was threatening to close the
plant. Employee Dile recalls Shearer questioning him
about whether anyone from the Union had approached
him about a week after he signed a card but places a
statement by Ken Shearer that Shearer felt sure Baum-
gardner would close the plant if the Union was voted in
at a later date, right after an employee meeting in Baum-
gardner's office a week before the election held on 29
May.
Gabert recalled further that Shearer, about 2 weeks
later, after the 17 April incidents, either the end of April
or early May entered the screen shack and told Gabert
and coemployee Sam Phillips, after first viewing union
literature posted on the screen shack walls and lying
around, irritatedly that "we. . . all of us could be very
possibly out of a job, he said, because Elmer Baum-
gardner will close the plant before. . . Mr. B. will close
down the plant before he'd ever let the union come in."
Phillips corroborated the account of the threat by Shear-
er but described it with more earthy terminology. Em-
ployee Kyle Ditzler testified that in the latter part of
April in the screen shack, while employee Phil Horn was
present, Shearer, seemingly in response to union litera-
ture and posters in the screen shack said he did not want
the Union in and if the Union did get in that the plant
might close—referring to Baumgardner saying this—and
he would also have to be a little harder on us. Ditzler
opined that Shearer seemed to be trying to scare employ-
ees away from the Union.
Shearer's testimony raised very bleak prospects for its
acceptance. He first testified that Elmer Baumgardner
gave no instructions to supervisors to talk to employees
about the union letter on 17 April specifically and une-
quivocably denying that anything was said regarding
their union activities or interest therein. However, on
cross-examination he admitted that Elmer Baumgardner
on 17 April, immediately after a meeting in his office,
specifically instructed Plant Foreman Junior Clugston to
go around the plant to see if anybody knew about the
union letter, and that Clugston made a copy of the letter
and did so around 3:30 or 4 p.m. Baumgardner himself
further cast doubt on Sh'arer's testimony when Baum-
gardner admitted he asked employee Jim Daniels Sr. on
the very same occasion Shearer testified about, whether
they, Supervisors Clugston and Shearer, or employee
Jim Daniels Sr. knew anything about the union activity,
referring to the letter. It is Respondent's own position
that Supervisors Clugston and Shearer were recalled to
the office from the plant and allegedly instructed not to
continue efforts to question employees about the Union
that day. Shearer even admitted he "probably" went
back to the control shack (screen room) and questioned
employee Eric Pouge in Shearer's office (described by
Shearer as being "open" to plant operators) whether he
had received the letter regarding the Union, and ques-
tioning him whether he had heard anything about the
Union. He further admits specifically warning employee
Ditzler about how the Union coming in would result in
harder conditions but explained he was referring to more
"paper work" in the event of an oil spill and there being
BAUMGARDNER CO. 979
more channels to go through, recalling he said to em-
ployees, ". . if the Union gets in, it'd be harder on me
because of increased paperwork, and it would be just
harder on evelybody, it would be a different working situ-
ation." Shearer was unable to recall whether he had
questioned employee Dile concerning the Union or
threatened employee Dile about a plant closing but testi-
fied he had numerous talks with Supervisor Junior Clug-
ston—about 10 in the first 2 weeks after Respondent
learned about the union organizational drive as follows:
there was a lot of discussions with [sic] the compa-
ny's that have unions now that, you know, that are
plants being shut down.
He could not recall, he testified, if he had any general
conversations with employee Paul Gabert about the
Union. He admitted, further, that he töld employee
Ditzler he did not want the Union to come in. Further,
Shearer was not asked to deny Ditzler's account that
Shearer told employees in the screen shack in late April
that if the Union got in the plant might close—referring
to Baumgardner's saying this Instead Respondent coun-
sel asked Shearer only: "Did you ever tell Kyle Ditzler
that if the union got in, the plant would close?" and
Shearer said no, leaving Ditzler's account of how the
closing was raised by Respondent intact.
Given the foregoing admissions, flat contradictions, in-
ternal inconsistencies, and a testimonial deportment on
the stand, which evinced an overly careful hesitancy and
leaning towards protecting partisan interest, I do not
credit Shearer's account over that of employees when
they differ, and find the latter in said respect to be reli-
able.
E. Threats and Interrogation by Supervisor Junior
Clugston
Several employees testified that Plant Supervisor
Junior Clugston interrogated them about their union sen-
timents and conduct from 17 April to the election and
communicated threats by Baumgardner to close the plant
if the Union came in. Clugston admitted questioning em-
ployees but denied making reference to a plant closing.
Employee Timothy Heiman testified that Plant Super-
visor Clugston, shortly after lunch around 21 April asked
him and employee John Emory in the paint shop if they
knew anything about the union letter—which Clugstou
had with him The two said no. A few days later while
Heiman was in the mechanics shop at the bolt bin he
heard Clugston tell employee Bob Runk that Clugston
had heard : aumgardner saying that if the Union comes
down here, we'll close the plant down. Heiman was 5
feet away. Employee Jeffrey Parson testified that 1
month after he signed a union card Clugston came to
him in the plant garage with a letter from the Union re-
garding a majority of employees having signed union
cards and after Parson read the letter asked him if he
knew anything about that stating, ". . . if Elmer [Baum-
gardner] wanted he could close the doors before he'd let
the Union in." Employee Charles Gordon recalled that 1
week after he signed a union card 2 Clugston came out of
the parts room and asked him if he knew anything about
the Union, what was going on about it and asked him if
he knew who was behind it Gordon testified that out of
fear for his job being lost he did not tell Clugston what
he knew. Employee Richard Smelser testified Clugston
also questioned him—the day he believes Baumgardner
received the letter—at the parts room between 4 and
4:15 p.m.---about the letter. Clugston questioned if
Smelser knew anything about it and the employee re-
plied he had been approached by a fellow employee.
Clugston wanted to know who that employee was and
when Smelser said he would rather not say, Clugston
persisted in his questioning asking him what shift the
person worked on, whether it was first or second shift.
Smelser refused to reply. Two days before the 29 May
election, when Smelser returned from a union meeting to
his work at 6 p.m. Clugston approached him and asked
what promises the Union had made at the meeting.
Smelser replied none, and, out of concern for risking a
business relationship beneficial to him told Clugston he
was not in favor of the Union and did not think it would
win the election.
Linwood Verdier, welder mechanic, recalls being
questioned by Clugston a month to 6 weeks before the
election, right after a safety meeting, whether he knew
anything about a letter from the Union, as Verdier was
"coming in" the plant. Verdier replied that he had signed
a card, whereupon Clugston smiled and nothing further
was said.
The persistent, widespread, and detailed questioning of
employees described by them as continuing even under
protest against revealing the identity of a fellow employ-
ee engaged in soliciting card signers is inconsistent with
Clugston's testimony characterzing those efforts as re-
sulting merely from surprise at the union letter and an
effort, pictured by Respondent witnesses to merely ascer-
tain the bona fides of the union letter, whether it was a
"hoax" or not. Further illustrative of an inconsistency
betraying the falsity of the professed reason for Clug-
ston's interrogation of employees is his own admission in
testimony that he reported back to Baumgardner that,
one guy admitted to signing a union card. I consider his
testimony that he did not feel one way or the other
about employees being organized by the Union, was un-
concerned about it, .and was not really aware of how
Baumgardner felt about the Union until only 1 week
before the election, and did not "really" know if the
owner was concerned, though probably so, to be unwor-
thy of belief. Finding this the case, I am unable to credit
his denials of communicating any threats of plant clo-
sures or of certain questioning of employees, which still
left some employee accounts not specifically addressed
by his testimony to be intact in any event. In short,
noting in addition, his admission that Shearer had told
employees matters would be more strict with a union in,
because It would not be a family affair anymore Shear-
2 7 April which means the described event occurred around 14 April
some 2 days prior to Gordon's alleged hospital admittance on 16 April so
that such admittance is not inconsistent with an earlier encounter with
Clugston.
980 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
er's testimony that he and Clugston discussed the union
situation and plant closings- numerous (10) times before
the election, combine to deflate into untruths his pro-
fessed lack of concern over union representation for em-
ployees. The employee accounts, though with some
faulty recall regarding a date or two, are in the main en-
tirely credible and convincing.
F. Further Interrogation and Threats by Owner
Baumgardner
On the Tuesday before the election, in the screen
shack at 6 p.m., while fellow employee Jeff Ewing was
present, employee Paul Gabert testified that Elmer
Baumgardner approached Gabert and told him he heard
or was informed that Gabert felt very strongly for the
Union and when the latter agreed this was true, Baum-
gardner questioned him why he was so high on the
Union, why he wanted a union so bad, whereupon
Gabert told him the reasons. Gabert testified that Baum-
gardner thereupon said "you know, if the Union would
ever get in here you would be the first to go," explaining
when asked by Gabert why, because of an earlier drink-
ing while driving offense. Gabert further testified that
during a meeting of employees in Baumgardner's office a
week before the election—there being only one such
meeting indicated by the record—the owner told em-
ployees he would close the plant down before he ever
gave in to a closed shop.
Employee Timothy Helman testified that several days
days after 21 April (a few days after he had overheard
the Clugston threat to employee Bob Runk that Baum-
gardner said he would close the plant down if the Union
came in) Baumgarnder spoke to Heiman in the paint
shop—while employee John Emory was present,-stating,
"Tim I hear you're for the Union," and that he, Baum-
gardner would do his best to keep the Union out, and
that "if you're not happy working here, why don't you
go somewhere else?" Heiman said he had signed a card
to bring the Union up for a vote and had open ears for
both sides.
Employee David Dile, attended the employee meeting
referred to in Gabert's testimony, and corroborates the
latter's statement about a threat by Baumgardner to close
the plant recalling the owner saying the Union would
ask for a closed shop but he would close the plant before
he would have that. Questioned further Dile stated that
Baumgardner was not tying in a plant shut-down "direct-
ly" to a closed shop demand, that the witness recalled
Baumgardner saying he would close the plant if employ-
ees voted for the Union.
The day before the election, or on election day, em-
ployee Charles Gordon testified he received a message at
home from his mother stating Baumgardner had called
and he was to go in to the plant an hour before the elec-
tion. Gordon was on leave of absence with an eye injury.
He went in, spoke with Dick Dawe, service manager,
asking him to ring Baumgardner about going to his ap-
pointment. Gordon then met with the owner alone in the
latter's office for a 10- to 15-minute talk by Baum-
gardner, which seemed longer than that to the employee.
The owner asked Gordon if the employee knew what
the Union was all about, both sides of the story, that the
owner knew other companies that had unions. Gordon
testified that Baumgardner said the company, referring to
his company, might go bankrupt if the Union got in,
without explaining how or why.
Melvin Welsh, welder, testified that on the day of the
election Baumgardner asked him in the presence of
coemployees Crouse and Fry what we thought of the
election—no further details on the occurrence were elic-
ited during Welsh's testimony.
Regarding these employees' testimony, beginning with
Gordon's, I note that Service Manager Dawe, who testi-
fied he was not always present in the parts room was un-
certain and ambivalent concerning Gordon's presence in
the parts room the day Gordon testified he met with
Baumgardner, first testifying (1) he could not recall a
conversation with Gordon that day then, in the blink of
an eye and under prodding, that (2) Gordon never re-
quested any call by him to Baumgardner, then (3) that
Gordon was not in his office that time of day because he
was not scheduled until 4:30, but, that yes, (4) it was true
Gordon was on leave for an injury to his eye so there-
fore the scheduling reference was really irrelevant, but,
yes, (5) Gordon was there after the election to get
change for the pop machine; but, no, (6) he could not
swear to it and fmally, (7) he really did not know if
Gordon was there after the election. If Dawe'sjestimony
was intended to shore up Baumgardner's denial of any
meeting with Gordon, it failed to do so for want of con-
sistency and reliability. Partly for reasons having to do
with Respondent owner Baumgardner's own conduct de-
scribed above, as well as his responsibility for the con-
duct of his agents and his testimony regarding what he
did and did not do regarding the termination of employ-
ee Melvin Welsh Jr., discussed below, I am not inclined
to credit his denials concerning any of the employee re-
ports of their interrogation and exposure to his threats of
plant closings detailed above.
John Edwin Ocker III, an employee put on the stand
by Respondent, testified he had heard rumors around the
plant of a plant closing. Under leading by Respondent
counsel he said Baumgardner, at the 22 May employee
meeting said, "It would not close." Under cross he flatly
asserted there was no discussion of strikes, then stated he
did not remember after being shown the question-and-
answer sheet (G.C. Exh. 3) admittedly read from by
Baumgardner, and further could not remember how
many times Baumgardner spoke about plant closings,
though the latter stated during his testimony that he
mentioned the subject three times, at the start, in the
middle, and at the end. It is revealing in a corroborating
sense that the five-page long sheet read by Baumgardner
contains, inter alia, reference to the following:
And strikes or other actions that can damage the
employer could eventually result in a loss of jobs or
closing the facility altogether. [Emphasis added.]
[G.C. Exh. 3.]
The only other employee out of 20 to 25 in attendance
offered to support Respondent's position regarding the
meeting wherein Baumgardner denies he threatened to
close the plant was J. Roger Smith, who was fed highly
P
BAUMGARDNER CO. 981
leading questions and whose testimony really constituted
therefore, the testimony of Respondent counsel rather
than his own. Confronted with nonleading questions on
cross-examination the witness couldn't even remember,
he said, whether the General Counsel's Exhibit 3 was the
paper Baumgardner read from, or even whether or not
the paper Baumgardner read from was more than one
page long. (It was five pages long.) Faced with the cred-
ible testimony of employees who testified in far greater
detail as to what Baumgardner said at the meeting I
credit them over Respondent's witnesses whose perform-
ance was flawed in the respects noted above, and addi-
tionally regarding Baumgardner, as further detailed
below.
Baumgardner was stonily impassive and impenetrable
on the stand, in sharp contrast to the kind of person he
tried to portray in his testimony—a man who would
assure Paul Gabert "over and over"—he said, that his
position with the Company at the election would not be
jeopardized by his serving as a union observer. I saw no
stich person in his icy demeanor and tightly controlled,
carefully rehearsed performance in court, nor in his han-
dling of the Welsh termination, which further reflected
adversely on his credibility as discussed below. I cannot
believe he repeatedly assured employees at the 22 May
meeting against a plant closing under any circumstances,
as Respondent contends through an unacceptably forget-
ful employee witness obviously prepped on only this one
question and who could not even remember if the Gen-
eral Counsel's Exhibit 3 was longer than one page, and
by a second employee led through examination because
the text used by Baumgardner--from which he admitted-
ly departed during question and answer interludes
(during which he admittedly stated he would never
accede to a union or closed shop)—the text itself read by
Baumgardner outlines specifically circumstances under
which the plant could close—as described above. The
self-contradiction admittedly so established in Respond-
ent's position invites disbelief regarding any such assur-
ances being communicated to employees by the Compa-
ny's owner, that is, Respondent cannot pretend on the
one hand to say that employees were assured at the
meeting by Baumgardner that the plant would not be
closed under any circumstances while expressly admit-
ting on the other hand that indeed employees were in-
formed of union-connected circumstance—strikes called
by the Union—under which the plant could be closed,
without incurring disbelief towards their witnesses' testi-
mony.
I find no reason to disbelieve the employee accounts
mainly corroboratory that they continued to be confront-
ed by the spectre of a union victory connected plant
closing—an idea planted earlier by Respondent Supervi-
sors Shearer and Clugston—at the 22 May meeting
during Baumgardner's remarks.
G. Analysis
I find that throughout the entire period 17 April 1986
through the election day 29 May 1986, Respondent offi-
cials made threats to employees, on the dates noted
above, that the plant would close if the Union came in, if
the employees chose union representation. Such threats
interfered with employees' rights under Section 7 of the
Act in violation of Section 8(a)(1) in the Act. Williamson
Memorial Hospital, 284 NLRB 37 (1987); Continental Can
Co., 282 NLRB 1363 (1987); Minnesota Boxed Meat, 282
NLRB 1208 (1987); and SDC Investment, 284 NLRB 131
(1987).
I further find that Respondent's pervasive, detailed
questioning of employees on each and every occasion de-
scribed above, notwithstanding that the situs for the oc-
currences was sometimes the workplaces in the plant
where employees frequented regularly or there may have
been in one or two instances a "normal" or "friendly"
element involved, took place in an atmosphere overshad-
owed by the coercive threats of a plant closure made by
Respondent officials directly in many instances to the
employees at times when such employees had not yet
openly declared union support as described above, or
confronting them as reports circulated around the small-
size plant force from Respondent officials throughout the
entire period 17 April to election day 29 May, the day
Respondent unlawfully further threatened employee
Gordon with possible company bankruptcy if the Union
got in. See Tomco Carburetor Co., 275 NLRB 1, 4 (1985).
In short, the plant was rife with reports of a plant clo-
sure, documented above, so that the questioning of em-
ployees concerning who was behind the Union, what
their identity was, what shift they were on, what did
they feel about the Union, what did the Union promise
them and the like, without any assurances against reprisal
or any showing of a valid purpose was, in my view, cou-
pled inextricably with the unlawful threats described
above—including the threat, hereby, also found unlawful
of things being harder for employees if the Union came
in. I conclude therefore that said questioning by Re-
spondent constituted unlawfully coercive interrogation of
employees concerning their protected union activities
and that Respondent thereby violated Section 8(a)(1) of
the Act. Establishment Industries, 284 NLRB 121 (1987);
Minnesota Boxed Meat, supra (questioning coupled with
threatened plant closing); Continental Can Co. (threat of
plant closure or more onerous working conditions); Wil-
liamson Memorial Hospital, supra; and Daniel's Pallet
Service, 283 NLRB 34 (1987).
Additionally, it is concluded that Respondent engaged
in conduct creating the impression that it was keeping
the union activities of its employees under surveillance
when its officials approached employees with the open-
ing statements I hear or have been informed you are for
the Union. (Baumgardner to employee Gabert on Tues-
day before election.) 3 Questioning without any prelimi-
nary, and where subject was unbroached and questioning
directed towards an employee who was not a known
active or open union adherent after a union meeting con-
cerning what promises the Union had made at the union
meeting. (Plant Foreman Clugston of employee Smelser
2 days before the election.) Respondent's owner further
contributed to creating this unlawful impression, ap-
proaching employee Tim Heiman at the paint shop sev-
3 It is axiomatic that Baumgardner's threat that Gabert would be the
first to go if a union got m violated Sec. 8(a)(1) of the Act.
982 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
eral days after 21 April and declaring, while another em-
ployee, John Emory, was present that "Tim I hear
you're for the Union," inviting him to leave since he
therefore was not happy, the implication arising there-
from, being employed at Respondent's plant. Given the
established context of widespread interrogation into em-
ployees' union activities in order for Respondent to ac-
quire knowledge concerning those activities, it is plainly
evident why Respondent's further conduct telling em-
ployees it knew they were for the Union and asking an
employee what promises the Union had made after a
union meeting that same day, would create the impres-
sion that Respondent was keeping a close watch on them
in such regard, and I fmd such conduct created the im-
pression of unlawful surveillance. United Merchants &
Manufacturers, 284 NLRB 135 (1987), and, especially,
Kidde Inc., 284 NLRB 78 (1987), and California Dental
Care, 272 NLRB 1153 (1984).
H. The Termination of Melvin L. Welsh Jr.
Welder mechanic Melvin Welsh, considered by super-
vision to be a good welder and a good worker, if slow at
times, worked the first shift with three other employees
until, along with those four, Respondent hired Arthur
Frey and Kenny Crouse a month or so before the elec-
tion to assist on a temporary basis in hooking up tanks.
In the absence of Chief Engineer Percy Glynn, Junior
Clugston supervised Welsh.
On 9 April Paul Gabert spoke to Welsh about getting
a Union in, and gave him a union authorization card,
which Welsh signed later and returned to Gabert the
next day in the screen shack. It is recalled that it was
Paul Gabert's and others locus of union organizing ef-
forts and the place supervision first went to question em-
ployees about union activities. Welsh spoke to several
plant employees, Howard Fox, "Butch," Kenny Crouse,
Arthur Frey, Anthony Baker, and Tim Helman approv-
ingly about the Union engaging in open discussions daily
with Frey and Crouse while working throughout the day
up on the hill where trailers were parked about what the
Union could do for employees if it got in by way of im-
proved wages, and benefits. Welsh also attended a union
hosted meeting on 28 May at a restaurant with 8 to 15
other employees before the election held on 29 May.
In mid-June, after getting only two 10-cent-an-hour
wage increases the previous spring and fall, Welsh asked
Glynn, chief engineer, to ask Baumgardner about a pay
increase. Glynn did so and told Welsh on 25 June on the
latter's inquiry concerning the status of his request that
Baumgardner said no, as it would be untimely under the
Company's incentive program. Welsh admits that when
he asked Glynn to make the request earlier he told 'him
he was out looking for a better paying job. Welsh testi-
fies that Glynn specifically asked him whether the place
he had sent an application [to] had called Walsh and that
he replied no, but ([ the pay was more he would probably
go.
Chief Engineer Glynn testified he spoke to Welsh on
Wednesday, 25 June, and Welsh said if he did not get the
raise he'd be leaving the following Monday. Glynn on
further examination described Welsh as having said he
would be planning on leaving on Monday. Glynn also
said Welsh had stated he had a job offer, and that Glynn
informed Baumgardner about it the same day—explain-
ing he had to run back and forth from the shop to the
office concerning the matter. It is instructive to note that
notwithstanding Glynn's account, at variance with
Welsh's testimony of a purely conditional intention to, at
best, plan to leave on Monday if the pay were better
elsewhere, is an assertion of an expressed intent to leave
Monday or a plan to leave then, yet Glynn himself
admits he asked Welsh the next day, Thursday, whether
he had heard from his employer and if he was leaving
for sure which flies in the face of Respondent's position
that Welsh announced an unequivocal intent to leave on
Monday during the Wednesday discussion, else why
would Glynn be checking out the unequivocably stated
intention he allegedly reported to Baumgardner? The po-
sition of Repsondent on this key element is further weak-
ened, in my view, by the impressive degree to which
Glynn was unable to describe any response at all by
Baumgardner to Glynn's report that a good employee
was leaving a then somewhat important position, a lapse
in an otherwise steady stream of certainties given in re-
sponse to questions concerning what he allegedly report-
ed to Baumgardner. Furthermore it seems unlikely
Welsh would be seeking what could only be anticipated
as being another 10-cent raise at the same time he had
accepted an offer at another plant.
In any event, the key to ascertaining further what hap-
pened later to Welsh is further disclosed by subsequent
events. Baumgardner, ever willing to walk through the
plant and converse with employees in the small-size
force inquired no further into events and wrote up a
letter Friday afternoon, which Clugston gave to Welsh,
stating, "It is our understanding that you have accepted
employment elsewhere and that today is your last day
with us. Thank you for your services and good luck in
the future." (G.C. Exh 4.) Baumgardner said he did this
as a courtesy, but admitted that when he wrote the letter
and gave it to Clugston, Welsh was still working, on the
plant premises, and there is no indication he made any
effort to either confirm the Respondent's alleged "under-
standing" with Welsh directly or to communicate before-
hand through Glynn, or himself, to Welsh how the Com-
pany was construing matters. It is simply out of charac-
ter with how the record indicates this closely knit,
family owned and operated business concern would nor-
mally handle such a matter, by a remote control, like
arm's length dealing in haste rather than simply finding
out the facts by simply asking Welsh whether he was
quitting on Monday or, at least whether he understood
his discussions with Glynn were being viewed in such
light. It is reasonable to infer that as an experienced and
intelligent businessman, knowledgeable in such matters,
Baumgardner knew this was a matter of no small impor-
tance and significance for Welsh's livelihood.
For his part Welsh promptly on reading the letter told
Clugston that he had not quit but was told he would
have to talk to Glynn or Baumgardner. He did not call
the latter because he knew he had left on vacation for 2
weeks. Glynn also was not there and when Welsh called
Monday he learned Glynn was away on a trip. The next
„
BAUMGARDNER CO. 983
day he called Glynn again but Glynn told him in reply
to Welsh's question why Welsh had gotten the letter, de-
nying to Glynn that he had ever quit, Glynn told him he
did not know, and referred him to Baumgardner.
Welsh tried to contact Baumgardner numerous times
by phone on the latter's return from vacation without
success, calling the company, identifying himself to the
receptionist and asking to speak with Baumgardner, and
being told he was busy but would get back to him. He
made four or five calls from his Mother's house to
Baumgardner's office, four or five from his own home,
and three from the Union's office as to which he recalls
on the first effort a female receptionist said wait a minute
and hung up. When Welsh called back the receptionist
said Baumgardner was on another line and Welsh asked
to hold, to wait on the line until after several minutes she
got on the line and said Baumgardner would call Welsh
back.
Union President Crawford recalls that during the time
described he dialed the Baumgardner number for Welsh,
once advising Welsh to ask to speak to Baumgardner, his
son, or any supervisor, but that all were busy according
to Welsh, who asked the person taking the call to have it
returned, leaving the phone number at the local union
office and at his home. Welsh never received an answer
to his numerous efforts to contact Baumgardner and get
his job back, and I find it highly revealing of Respond-
ent's lack of bona fides in separating Welsh that Baum-
gardner offered the incredible testimony that he never
received any message concerning Welsh trying to talk to
him on the phone because the evidence is in the prepon-
derance that he did, and the only reason for not accept-
ing a call in a professedly "courteous" relationship it will
be recalled was given as the reason for the separation
letter, would be that the accepting of such a phone call
would provide Welsh the opportunity to disabuse Re-
spondent's "understanding" that Welsh had accepted em-
ployment elsewhere and intended "today" as his "last
day with" Respondent, and clearly disavow any intent to
quit.
Respondent, in my view, revealed its motive to unlaw-
fully rid itself of a prounion employee by failing to estab-
lish it had any proper reason for its haste and secrecy in
deciding, Welsh had quit. Surely, if Welsh had quit, there
would be no harm in waiting until Monday before issu-
ing the letter as another employee simply filled in for
Welsh without incident as it happened, or as noted in
asking him outright if he had quit given the seriousness
of the Respondent's proposed actions towards Welsh.
Furthermore, if he reported to work on Monday there
would have been no harm whatever to Respondent or
problem for the about to vacation Baumgardner either as
Glynn handled assignments when Baumgardner left on
vacation regarding the project Welsh had been working
on.
Confirming even further Baumgardner's animosity to-
wards Welsh because of his prounion support, the only
reason in this record to explain this conduct towards
Welsh, a good mechanic, a good worker, rejecting his
calls callously, is Baumgardner's testimony that he would
not have responded to Welsh's calls even if he had been
informed of the numerous messages trying to reach him
from Welsh. This evidences even more a strong animosi-
ty. Although Baumgardner stated as his reason for not
doing so that the matter was in "litigation," he offered
no basis whatsoever for any assumption that Welsh's
calls would in any way if answered by Baumgardner,
jeopardize or prejudice the alleged "litigation." Putting it
another way, even if Respondent assumed Welsh was
calling about possibly getting his job back, or to explain
he had not quit there is no reason why under nonsinister
circumstances, Respondent would not simply take the
call—perhaps even reconsider Welsh's status. It can be
reasonably inferred from this highly damaging admission
that Baumgardner either had something to hide or pro-
tect from exposure so that he dared not risk even grant-
ing Welsh the courtesy of returning his call, and what
that would be on this record, I believe was the risk that
Respondent's case for terminating Welsh as a quit em-
ployee would possibly be weakened during any commu-
nications with him, as the truth might come out.
Given Welsh's open union activities in the compactly,
sized operation warranting the inference that Respondent
was aware and had knowledge thereof, Respondent's ad-
mitted and established antiunion animus, and the total
collapse, in my view, of its defense for snatching the
chance to call Welsh a quit as proven both by the cred-
ited testimony of Welsh and the conduct of Baum-
gardner throughout in hiding from him, I conclude Re-
spondent terminated Welsh because of his union activi-
ties in violation of Section 8(a)(1) and (3) of the Act.
Nissen Foods (USA) Co., 272 NLRB 371, 378 (1984);
Mister Fox Tire Co., 271 NLRB 960, 968 (1984); and,
Class Watch Strap Co., 267 NLRB 276, 281 (1973). In
reaching this conclusion I have applied the test set forth
in the Board's decision in Wright Line, 251 NLRB 1083
(1980), enfd. 662 F.2d 899 (1981), and found that the
General Counsel has established a prima facie case of dis-
criminatory discharge by a preponderance in the evi-
dence and reasonably drawn , inferences therefrom. Since
the Respondent's proffered reason for the separation of
Welsh from employment is herein found to be a false
reason, because I find Welsh had never quit his employ-
ment on the date or dates indicated, but rather Respond-
ent forced the facts into such a construction, its asserted
reasons did not exist or were not relied on. Accordingly
the inference of Respondent's wrongful motive arising
from the General Counsel's satisfaction of the Wright
Line test is left intact and the discharge is found unlaw-
ful. Bridgeway Oldsmobile, 281 NLRB 1246 fn. 2 (1986).
CONCLUSIONS OF LAW
1. Respondent Elmer R. Baumgardner t/a Baum-
gardner Company is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3 Elmer Baumgardner, sole proprietor of Respondent,
Ken Shearer, and Junior Clugston are supervisors and
agents of Respondent within the meaning of the Act.
4. Respondent Elmer R. Baumgardner t/a Baum-
gardner Company violated Section 8(a)(1) of the Act by
984 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
threatening employees with plant closure, job loss, that
the Company would go bankrupt, and more onerous
working conditions if the Union came in or employees
voted for the Union.
5. Respondent violated Section 8(a)(1) of the Act by
coercively interrogating employees concerning their ac-
tivities and feelings concerning the Union.
6. Respondent violated Section 8(a)(1) of the Act by
creating the impression it was engaged in surveillance of
the union activities of its employees.
7. Respondent violated Section 8(a)(1) and (3) of the
Act by discriminatorily discharging employee Melvin L.
Welsh Jr. from his employment with Respondent.
8. The aforementioned unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take the following affirmative
actions, including the posting of an appropriate notice,
designed to effectuate the policies of the Act.
I recommend Respondent be ordered to offer Melvin
Welsh Jr. full reinstatement to his former position or its
equivalent, if his former position no longer exists, and
make him whole for any loss of earnings or benefits he
may have sustained as a result of Respondent's unlawful
conduct against him, and to remove any reference to his
discharge from its files. Said loss of earnings and benefits
shall be determined as prescribed in F. W Woolworth
Co., 90 NLRB 289 (1950), with interest as computed in
Florida Steel Corp., 231 NLRB 651 (1972). See generally
Isis Plumbing Co., 138 NLRB 716 (1962). 4 I do not rec-
ommend a visitatorial clause, as requested by the General
Counsel, in the absence of any showing of special cir-
cumstances that would warrant the inclusion of one. See
a L. Willis, Inc., 278 NLRB 203 fn. 1 (1986).
The Representation Case Election Objections
Respondent's unlawful conduct in violation of Section
7 rights of its employees permeated the entire preelection
period, start to finish and it is therefore recommended
that the close results thereof, indicative of such conduct's
likely improper influence on employees' freedom of
choice, be set aside and a new election be conducted at a
time and date deemed appropriate by the Regional Di-
rector for Region 6. Dal-Tex Optical Co., 137 NLRB
1782, 1786-1787 (1963).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 5
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest will be 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.
5 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
ORDER
The Respondent, Elmer Baumgardner t/a Baum-
gardner Company, Fayetteville, Pennsyvania, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure, job loss,
that the Company would go bankrupt, and more onerous
working conditions if the Union came in or employees
voted for the Union.
(b) Unlawfully interrogating employees regarding their
union activities or feelings or creating the impression
that Respondent is engaging in surveillance of employ-
ees' union activities.
(c) Unlawfully discharging any employee because of
the employee's union activities.
(d) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Melvin Welsh Jr. immediate reinstatement to
his former position, or if not available, to a substantially
equivalent position, without prejudice to his seniority, or
other rights and privileges, and make him whole for any
loss of earnings by reason of the discrimination against
him in the manner described in the remedy section of
this Decision.
(b) Remove from its files, delete any reference to the
unlawful termination of Melvin Welsh Jr., notifying him
in writing that this has been done, and that the discharge
will not be used against him in the future.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post in its plant in Fayetteville, Pennsylvania,
copies of the attached notice marked "Appendix."6
Copies of the notice, on forms provided by the Regional
Director for Region 6, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt 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 Respond-
ent to ensure that the notices are not altered, defaced, 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 Re-
spondent has taken to comply.
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 Nation-
al 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"
BAUMGARDNER CO. 985
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
have violated the National Labor Relations Act and has
ordered us to post and abide by this notice.
Section 7 of the Act give 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 protect
concerted activities.
WE WILL NOT threaten employees with plant closure,
job loss, company bankruptcy or harder working condi-
tions if the Union comes in or employees voted for the
Union, International Brotherhood of Teamsters Chauf-
feurs, Warehousemen and Helpers of America, Local
Union No. 32, or any other union.
WE WILL NOT coercively interrogate any employees
concerning union activity or create the impression that
we are keeping employee union activity under surveil-
lance.
WE WILL NOT discourage membership in International
Brotherhood of Teamsters Chauffeurs, Warehousemen
and Helpers of America, Local Union No. 32, or any
other labor organization, by discharging or otherwise
discriminating against any employee with respect to
wages, hours, or other terms and conditions or tenure of
employment.
WE WILL NOT interfere with, coerce, or restrain our
employees in the exercise of the rights set forth at the
top of this notice.
WE WILL offer Melvin Welsh Jr. immediate reinstate-
ment to his former position and we shall make him
whole for any loss of earnings he may have suffered by
reason of our discrimination against him plus interest, as
set forth in the decision of the administrative law judge.
WE WILL notify Melvin Welsh Jr. that we have re-
moved from our files all references to his discharge, noti-
fying him specifically that this has been done and that
this unlawful action will in no way be used against him
in the future.
ELMER R. BAumGARDNER T/A
GARDNER COMPANY