Champion Rivet Co.

National Labor Relations Board - Board Decisions

Sep 13, 1994

314 N.L.R.B. 1097 (N.L.R.B. 1994)

1097
314 NLRB No. 178
CHAMPION RIVET CO.
1 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to the judge’s ruling which re-
quired that the Respondent’s counsel return the affidavits of the
General Counsel’s witnesses upon the conclusion of the testimony
of the individual and not retain them until the close of the hearing.
Although the Respondent argues generally that this impacted on its
ability to establish that the General Counsel’s witnesses were not
credible or to support the credibility of the Respondent’s witnesses,
we find that the Respondent has failed to show specifically how it
was prejudiced by the judge’s ruling. We therefore affirm the
judge’s ruling.
3 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.
4 We disavow the judge’s gratuitous remarks in fn. 5 of his deci-
sion.
5 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982); approved in NLRB v.
Transportation Management Corp., 462 U.S. 393 (1983).
6 The Respondent contends that all five hourly employees it hired
were union members including two who had held union positions.
We note, however, that the union activity of the other two employ-
ees who held union positions appears to have been minimal. Thus,
Clayton Frazier testified that he had once been a department steward
for a short period of time. Chadwick testified that at one time he
had asked McArthur Bishop to assist him as a steward, although
Bishop was never actually elected because of the short time in-
volved. Also, according to Chadwick, Bishop stated that he did not
‘‘give a damn about this Union.’’
7 Exhibits in the record include a letter of recommendation from
D.J. Crysler, vice president of manufacturing for CCI, attesting to
Chadwick’s ability in handling equipment, his near-perfect attend-
ance, his fair and honest work as a union representative, and his
willingness to help his fellow employees.
Champion Rivet Company, a Division of Hogen In-
dustries, Inc., a HI TecMetal Group Company
and Local Union No. 743 of the International
Union of Allied Industrial Workers of America,
AFL–CIO. Case 8–CA–24268
September 13, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND BROWNING
On February 16, 1994, Administrative Law Judge
George F. McInerny issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed cross-exceptions and an an-
swering brief, and the Respondent filed a reply brief.
The National Labor Relations Board has delegated
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,1 and has
decided to affirm the judge’s rulings,2 findings,3 and
conclusions4 and to adopt the recommended Order as
modified and set forth in full below.
1. The parties stipulated that the Respondent, Cham-
pion Rivet Company, a Division of Hogen Industries,
Inc., a HI TecMetal Group Company, is a business
successor to Champion Commercial Industries, Inc.
(CCI) pursuant to NLRB v. Burns Security Services,
406 U.S. 272 (1972). Based on this stipulation, the
judge found that these entities are a single employer
within the meaning of the Act. The Respondent has
excepted to the single employer finding. We find merit
in this exception, and we agree with the Respondent
that a stipulation as to successorship does not auto-
matically lead to a finding of single employer. How-
ever, in its brief the Respondent has conceded that
Champion Rivet Company and Hogen Industries, Inc.
are a single employer. Accordingly, we limit our find-
ing of single employer status to these two entities. This
limitation does not affect the result in this case.
2. The judge found, inter alia, that the Respondent
violated Section 8(a)(3) and (1) of the Act by refusing
to hire Donald Chadwick, Frank Gallardo, and John
Abron because of their union activities and because of
the Respondent’s desire to remain nonunion. In its ex-
ceptions, the Respondent argues that the General
Counsel failed to show that its decision not to hire the
three employees was in any way motivated by a desire
to avoid the Union. The Respondent further asserts that
even if the General Counsel made a prima facie show-
ing of discrimination, the Respondent has rebutted it
and demonstrated that its hiring decisions were based
solely on legitimate business considerations. For the
reasons set forth below, we find no merit in the Re-
spondent’s exceptions.
In cases such as this one alleging a violation of Sec-
tion 8(a)(3), the Board applies the causation test enun-
ciated in Wright Line,5 and requires the General Coun-
sel to make a prima facie showing sufficient to support
the inference that protected conduct was a motivating
factor in the Respondent’s decision. Once this is estab-
lished, the burden shifts to the Respondent to dem-
onstrate that the same action would have taken place
even in the absence of the protected conduct.
The judge found, and we agree, that the General
Counsel established a prima facie case that the Re-
spondent’s failure to hire Chadwick, Gallardo, and
Abron was unlawful. Chadwick, Gallardo, and Abron
were the three most senior employees of the prede-
cessor employer (CCI) and were active union pro-
ponents.6 Chadwick had worked there for 29 years and
had been union president for at least 23 of those
years.7 Gallardo, who started in the rivet division of
CCI in 1962 before transferring to manufacturing in
1963, was union steward from 1970 to 1976. Abron,
who had worked for CCI since 1973, was the Union’s
secretary-treasurer for the last 3 years of his employ-
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The Respondent has excepted to the judge’s drawing an adverse
inference from the Respondent’s failure to call Botta, who was out-
side the hearing room, to corroborate Szigeti’s testimony. The Re-
spondent in its brief admits that Botta had an employment relation-
ship with the Respondent. When a party fails to call a witness who
may reasonably be assumed to be favorably disposed to the party,
an adverse inference may be drawn regarding any factual question
on which the witness is likely to have knowledge. It may be inferred
that the witness, if called, would have testified adversely to the party
on that issue. See International Automated Machines, 285 NLRB
1122, 1123 (1987), enfd. mem. 861 F.2d 720 (6th Cir. 1988). In
light of Botta’s employment relationship with the Respondent, he
may reasonably be assumed to be favorably disposed to the Re-
spondent. Accordingly, we find that the judge’s inference is permis-
sible under Board law.
ment and had also served as steward and committee-
man.
Two former CCI supervisors played key roles in the
Respondent’s hiring process. Janos Szigeti, the Re-
spondent’s general operations manager, testified that he
knew that Chadwick was the union president. Foreman
Richard Huffman testified that he knew that Chadwick
was the union president and that Abron held some
union office.
The Respondent’s union animus was demonstrated
by the credited testimony that Terry Profughi, presi-
dent of HI TecMetal Group Company, told Union
President Chadwick during a meeting in November
1990 that he did not want to have a union in any of
his plants. Specifically, Profughi stated that he owned
12 plants and all of them were nonunion, that he want-
ed to be able to move employees around from plant to
plant but could not do this if there was a union in the
plant he was purchasing, and that the purchase of
CCI’s induction plant would be easier if there were no
union. The Respondent further demonstrated its animus
by its refusal to allow Union President Chadwick to
speak to Profughi at the August 1991 meeting where
it was announced that the rivet division would cease
operation, by its admission that General Operations
Manager Szigeti initiated and assisted in the circulation
of an October 1991 antiunion petition, and by its ad-
mitted unlawful refusal to recognize and bargain with
the Union.
Most significantly, the General Counsel has shown
that the Respondent treated Chadwick, Gallardo, and
Abron differently from all other CCI unit employees.
When the Respondent took over the rivet operation, it
invited all the former CCI employees except
Chadwick, Gallardo, and Abron to a secret meeting to
apply for employment. Job applications were taken
from no other sources. Five of the six applicants were
hired; one former CCI employee failed his physical
and was not hired. After operations commenced, the
Respondent hired additional employees, but again did
not contact Chadwick, Gallardo, or Abron.
Based on the foregoing, we find that an inference is
warranted that the Respondent refused to hire
Chadwick, Gallardo, and Abron because of their union
activities and because of its desire to avoid a union in
the plant. Accordingly, the burden shifts to the Re-
spondent to demonstrate that it would not have hired
Chadwick, Gallardo, and Abron even in the absence of
their union activity. For the following reasons, we find
that the Respondent’s proffered reasons for failing to
hire these employees were pretextual. The effect of a
pretext finding is to leave intact the discriminatory mo-
tive established by the General Counsel. See, e.g.,
Limestone Apparel Corp., 255 NLRB 722 (1981),
enfd. 705 F.2d 799 (6th Cir. 1982).
First, the judge discredited the testimony of General
Operations Manager Szigeti regarding his reasons for
not hiring Chadwick, Gallardo, and Abron. That ad-
verse credibility resolution in itself seriously, if not en-
tirely, undermines the Respondent’s Wright Line de-
fense.
Although the Respondent vigorously excepts to the
judge’s credibility determination, we find, as stated in
footnote 3, supra, no basis for reversing the finding.
Indeed, the judge properly found that Szigeti gave
shifting reasons for not hiring Chadwick, Gallardo, and
Abron. Initially, Szigeti affirmed statements in his affi-
davit that the three employees were not hired because
they lacked the necessary qualifications. Later in his
testimony, however, Szigeti shifted to an entirely dif-
ferent rationale: he stated that the three employees
were not hired because they were poor workers, i.e.,
they lacked a ‘‘work ethic,’’ were slow, or slept on the
job.
Szigeti was then questioned on cross-examination as
to why he did not discipline these employees for their
alleged poor job performance. In testimony the judge
refused to believe, Szigeti stated that he was not famil-
iar with CCI’s disciplinary procedures, even though he
supervised production for CCI. Szigeti also testified
that he had approached CCI President Vince Botta to
complain about Gallardo and Chadwick only to be told
by Botta that Gallardo and Chadwick worked for Botta
and could not be fired by Szigeti. Again, the judge was
warranted in discrediting Szigeti. The Respondent did
not call Botta to corroborate Szigeti’s testimony that
Szigeti had tried to discipline Chadwick and Gallardo
but that Botta would not allow it, and the judge drew
an adverse inference from the Respondent’s failure to
call Botta to testify.8 In addition, no personnel data or
other records were submitted to corroborate Szigeti’s
testimony that the three employees were not employed
in the rivet division.
Second, Foreman Huffman offered only conclusory
testimony that the three employees were not qualified
for the available positions. Therefore, the judge prop-
erly accorded little weight to Huffman’s testimony. In
addition, Huffman failed to corroborate Szigeti’s testi-
1099CHAMPION RIVET CO.
9 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.’’
mony concerning the employees’ poor job perform-
ance.
Finally, the record shows that after the commence-
ment of operations, the Respondent needed and hired
additional workers. Some of these employees were
hired solely to perform tasks that the three alleged
discriminatees were clearly qualified to perform. The
Respondent failed to offer any credible explanation for
failing to contact Chadwick, Gallardo, and Abron for
these subsequent openings.
Accordingly, for all these reasons we find that the
Respondent has failed to demonstrate that it would not
have hired Chadwick, Gallardo, and Abron even in the
absence of their union activity. We therefore agree
with the judge that the Respondent violated Section
8(a)(3) and (1) of the Act by refusing to hire the three
employees.
AMENDED CONCLUSIONS OF LAW
1. Substitute the following for Conclusion of Law 1.
‘‘1. The Respondent, a successor to Champion Com-
mercial Industries, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.’’
2. Add the following as Conclusion of Law 2 and
renumber the subsequent paragraphs.
‘‘2. Champion Rivet Company and Hogen Indus-
tries, Inc. constitute a single employer within the
meaning of the Act.’’
AMENDED REMEDY
The General Counsel has excepted to the judge’s
failure to provide an affirmative remedy for the Re-
spondent’s failure to recognize the Union and bargain
in good faith. We find merit in this exception. We
shall modify the judge’s recommended Order to pro-
vide this affirmative remedy and to include the tradi-
tional language for the Board’s reinstatement and
expunction remedy. We shall substitute a new notice
to conform to the Order as modified.
ORDER
The National Labor Relations Board orders that the
Respondent, Champion Rivet Company, a Division of
Hogen Industries, Inc., a HI TecMetal Group Com-
pany, Cleveland, Ohio, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with Local Union No. 743 of the International Union
of Allied Industrial Workers of America, AFL–CIO
(the Union) as the exclusive representative of its em-
ployees in the appropriate unit described below.
(b) Circulating petitions designed to have its em-
ployees disassociate themselves from the Union.
(c) Refusing to hire employees because of their
union activities and because of its desire to operate a
nonunion facility.
(d) In any like or related manner interfering with,
restraining, 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) On request, bargain with the Union as the exclu-
sive representative of employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if any understanding is reached, embody
the understanding in a signed agreement:
All production and maintenance employees and
truck drivers of the Employer’s Cleveland, Ohio
operations, excluding office clerical employees,
and professional employees, guards and super-
visors as defined in the Act.
(b) Offer Donald Chadwick, Frank Gallardo, and
John Abron immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to sub-
stantially 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 judge’s decision.
(c) Remove from its files any reference to the un-
lawful refusals to hire and notify the employees in
writing that this has been done and that the refusals to
hire will not be used against them in any way.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and other records
necessary to analyze the amount of backpay due under
the terms of this Order.
(e) Post at its Cleveland, Ohio facility copies of the
attached notice marked ‘‘Appendix.’’9 Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Re-
spondent 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 On April 16, 1993, the General Counsel and Respondent filed a
joint motion to correct the record. Those corrections comport with
my recollection of the testimony, and the requested changes in ex-
hibit numbers are consistent with my notes on those exhibits. The
motion is granted, and the record has been amended by noting and
correcting transcript errors.
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 refuse to bargain collectively with
Local Union No. 743 of the International Union of Al-
lied Industrial Workers of America, AFL–CIO.
WE WILL NOT circulate petitions among our employ-
ees for them to disassociate themselves from the
Union.
WE WILL NOT refuse to hire employees because of
their union activities or because of our desire to oper-
ate a nonunion facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All production and maintenance employees and
truck drivers of the Employer’s Cleveland, Ohio
operations, excluding office clerical employees,
and professional employees, guards and super-
visors as defined in the Act.
WE WILL offer Donald Chadwick, Frank Gallardo,
and John Abron immediate and full reinstatement to
their former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or any other rights or privileges pre-
viously enjoyed and WE WILL make them whole for
any loss of earnings and other benefits resulting from
the discrimination against them, less any net interim
earnings, plus interest.
WE WILL notify each of the foregoing individuals
that we have removed from our files any reference to
the unlawful action against him and that the failure to
rehire will not be used against him in any way.
CHAMPION RIVET COMPANY, A DIVI-
SION OF HOGEN INDUSTRIES, INC., A HI
TECMETAL GROUP COMPANY
Allen Binstock, Esq., for the General Counsel.
Richard T. Prasse, Esq. and Amy Berman Hamilton, Esq.
(Hahn Loeser & Parks), of Cleveland, Ohio, for the Re-
spondents.
DECISION
GEORGE F. MCINERNY, Administrative Law Judge. Based
upon a charge filed on January 22, 1992, by Local No. 743,
Allied Industrial Workers of America (the Union), which
charge was amended by the Union on March 30, April 29,
and July 15, 1992, the Regional Director for Region 8 of the
National Labor Relations Board (respectively, the Regional
Director and the Board), issued a complaint on July 22,
1992, alleging that Champion Rivet Company, a Division of
Hogen Industries, Inc., a HI TecMetal Group Company (the
Company or Respondent) had violated Section 8(a)(1), (3),
and (5) of the National Labor Relations Act (the Act). The
Respondent filed a timely answer to this complaint denying
the commission of any unfair labor practices.
Pursuant to notice, a hearing was held before me at Cleve-
land, Ohio, on January 28, 1993, at which the Respondent
was represented by counsel, and the parties had the oppor-
tunity to present testimony and documentary evidence, to ex-
amine and cross-examine witnesses, to raise objections and
motions, and to argue orally. After the hearing concluded,
the Respondent and the General Counsel filed briefs, which
have been carefully considered.1
Based upon the entire record in this case and upon my ob-
servations of the witnesses, and their demeanor, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find that
Champion Rivet Company (Champion Rivet) is an Ohio cor-
poration engaged in the manufacture of rivets, cleavage pins,
and break pins at its facility in Cleveland, Ohio. Annually,
Champion Rivet purchases and receives goods valued at over
$50,000 directly from points outside of the State of Ohio. I
therefore find that Champion Rivet is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find that
the Union here, Local No. 743, International Union of Allied
1101CHAMPION RIVET CO.
2 The Union had represented Commercial’s employee’s from some
time in 1963.
3 Apparently this promise was kept, because there is nothing fur-
ther in this record about employees at the induction plant.
4 Frazier, McArthur Bishop, Bruce Campbell, Nicholas Szilpal,
Ron Tokay, and Ken Huffman.
Industrial Workers of America, AFL–CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Champion Rivet Company, one of the named respondents
here, had been for some years a part of a corporation named
Champion Commercial Industries, Inc. (Commercial). Cham-
pion Rivet operated first in Cleveland, then moved to East
Chicago, Indiana, then moved back to Cleveland in April
1990. Commercial operated three divisions, Champion Rivet,
which manufactured rivets, an induction plant, which heat
treated metals, and a manufacturing division, which manufac-
tured machined metal products.
All of the units of Champion Commercial were experi-
encing financial troubles in the early nineties. In November
1990, Commercial’s vice president announced to employees
that the Company was running out of money and would be
forced to close by the end of the year. At about the same
time another company, HI TecMetal Group (TecMetal),
agreed to buy Commercial’s induction division. In connec-
tion with this sale, there was a meeting between Vince Botta,
president of Commercial; Dave Chrysler, vice president;
Brian Adams, personnel director; Terry Profughi, president
of TecMetal; and Donald M. Chadwick, president of Local
743, which at that time represented Commercial’s employ-
ees.2 In the course of the discussion, Profughi stated that he
wanted to buy the induction plant from Commercial; that he
owned 12 plants, all nonunion, that he wanted to be able to
move employees around from plant to plant, but he couldn’t
do this if there was a union in the plant he was purchasing.
He said his purchase of the induction plant ‘‘would be a lot
easier if there was no union.’’ Chadwick said he would rec-
ommend that the Union drop its representation (of the em-
ployees working at the induction plant) if Profughi promised
to keep the ‘‘old timers’’ working at the induction plant.
Profughi agreed, and the deal went through.3
Commercial’s manufacturing facility shut down in January
1991, and several employees from the division were trans-
ferred to Champion Rivet. These included Chadwick, who
had worked for the Company since 1962, Frank Gallardo,
who had 28 years’ service, and John Abron (spelled, in the
record, Abrom, or Abram, or Abrams) with 20 years.
At this time, according to Plant Manager Janos Szigeti
Champion Rivet was using 32,000 square feet of a complex
of 198,000 square feet, a ramshackle structure that flooded
every time it rained.
B. The Sale of Champion Rivet
Financial woes continued to plague Champion Rivet. The
result was that the Company was sold to TecMetal. There
were problems with the sale itself, but, on reaching tentative
agreement, Hogen Industries (a division of TecMetal) and
Champion Rivet agreed on August 23, 1991 (memorialized
by a written agreement dated August 29, 1991), to hand over
management of the business of Champion Rivet to Hogen as
of August 23.
On or about this date, Vince Botta held a meeting of all
employees in the office of Champion Rivet and announced
that the operation would cease ‘‘due to funds.’’ It was gen-
erally known, according to Chadwick, that the Company was
being sold to TecMetal. Chadwick asked Janos Szigeti, then
materials manager for Champion Rivet, if he could talk to
Terry Profughi for 5 minutes. Szigeti said no, that Terry did
not want to talk to him. Chadwick then addressed the meet-
ing and said that if they could talk keep their jobs he would
recommend that they not fight the elimination of the Union.
The plant closed, and all employees were laid off.
After this meeting, there was another meeting in the induc-
tion division building, across a parking lot from the rivet di-
vision. Clayton Frazier, a 14-year employee of Champion
Commercial, testified that, sometime after the shutdown of
Champion Rivet, Supervisor Rick Huffman told him there
was going to be a meeting to set a date to make applications
to return to work. Six employees were invited to the meet-
ing4 with Profughi and Brian Adams. Profughi talked to
these employees, telling them to report to TecMetal’s head-
quarters for a physical, interviews, and orientation. Frazier
returned to work at the old Champion Rivet location on Au-
gust 29. The others, except for Ken Huffman, who had a
problem with the physical examination, reported to work at
that time or shortly thereafter.
C. Requests to Bargain
A few weeks after the plant reopened, Chadwick,
Gallardo, and Abron found out about it and contacted the
Union’s Regional Director, Donald C. Wagner. Wagner
wrote to Brian Adams at Hogen Industries on October 2 and
requested bargaining. Michael Robinson, general manager at
Hogen, replied, on October 9, 1991, denying that Hogen had
acquired the assets of Champion Rivet. This was technically
true, since the assets were not acquired until October 29, but,
I think, evades the question about the Union’s request to bar-
gain. Wagner tried another tack. On October 17 he addressed
a ‘‘To Whom It May Concern’’ letter to Champion Rivet, re-
questing bargaining. This caught the attention of Hogen, and
on October 22, Robinson posted a notice on the Champion
Rivet building, on Champion Rivet stationery, to all employ-
ees, saying that they had received the October 17 letter in-
forming the employees that the Company had to bargain with
the Union ‘‘unless the (successor) company had a good faith
doubt or proof that the Union has lost majority support
among the employees.’’
If the Company’s desires were not clear enough, the notice
went on to ask ‘‘what can a company base its doubt on? The
National Labor Relations Board recognizes that employees
may act together or individually by petition to the Company
stating their wish not to be represented by the Union. If a
majority so act, the National Labor Relations Board has
found that the company has a good faith doubt.’’
Not surprisingly, a petition was circulated among the em-
ployees and signed by the five transferees from the old
Champion Rivet. Armed with this assurance, Brian Adams
wrote Wagner on October 28 stating that even if the present
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Chadwick’s actions in abandoning union representation of em-
ployees, other than ‘‘old timers’’ in the induction division late in
1990, and his offer to wholly forsake the Union at the meeting in
August 1991 concerning the acquisition of Champion Rivet by
Hogen are not, perhaps, in the finest traditions of unionism or soli-
darity, but they do reflect the facts of the nineties, that the Union
can no longer protect members’ jobs, nor can it stand up in declining
industries, to insistent, nonunion employers. But we are not called
upon here to sit in judgment on those actions, but rather on the Em-
ployer’s actions in refusing to rehire Chadwick, Gallardo, and
Abron.
6 Despite this, the letter was received without objection.
Employer was found to be a successor, ‘‘there is a good faith
doubt or proof that the Union lacks the majority support of
our employees.’’
D. Stipulations, Withdrawals, and Admissions
Prior to and during the course of the hearing, the parties
entered into several stipulations, the General Counsel with-
drew some complaint allegations, and the Respondent made
certain admissions, all of which served to narrow the issues
before us.
1. Stipulations
(a) The complaint alleged that a unit appropriate for col-
lective bargaining in this case was: ‘‘all production and
maintenance employees and truck drivers of the employer’s
Cleveland, Ohio operations, excluding office, clerical em-
ployees, and professional employees, guards and supervisors
as defined in the Act.’’
Having first denied this allegation in its answer, the Re-
spondent stipulated with the General Counsel and the Union
that this is an appropriate unit.
(b) Having first denied that Hogen and TecMetal were
successors to Champion Commercial, the Respondent stipu-
lated that they are successors to Champion Commercial and
that they are a business successor to Champion Commercial,
the parent of Champion Rivet, within the meaning of NLRB
v. Burns Security Services, 406 U.S. 272 (1972). Based upon
this stipulation, I find that the present Champion Rivet Com-
pany is a division of Hogen Industries, Inc., itself a HI
TecMetal Group Company, and that these entities are a sin-
gle employer within the meaning of the Act.
(c) The parties stipulated that the letters dated October 2
and 17, 1991, are the only requests for recognition made by
the Union, and that the Respondent refused to recognize the
Union, in a letter dated October 25, 1991, based upon the
employees’ petition.
(d) The parties stipulated that Champion Commercial, the
parent of Champion Rivet, laid off its entire work force as
of August 22, 1991. Whereupon Hogen Industries entered
into a management agreement which allowed them to man-
age the assets of Champion Rivet, hiring its own employees,
who happened to be former employees of Champion Rivet.
During the time period from August to October there were
negotiations and culmination of the asset purchase. Those
employees continued as Hogen employees after the asset pur-
chase. Two supervisory employees, Janos Szigeti, materials
manager, and General Operations Manager Rich Huffman.
Other executives took other positions with Hogen or
TecMetal, or went elsewhere.
2. Withdrawals
At the opening of the hearing, the General Counsel moved
to withdraw the allegations contained in paragraph 12 of the
complaint; that the Respondent unilaterally changed terms
and conditions of employment for unit employees on and
after October 29, 1991, without notice to the Union. There
was no objection to this motion, and I granted it, removing
paragraph 12 from the issues in this case.
3. Admissions
(a) During the hearing, the Respondent amended its an-
swer to admit paragraph 9, alleging that James (Janos)
Szigeti unlawfully initiated and associated in the circulation
of an antiunion petition; and paragraphs 11(A) and (B) which
alleges that the Union requested recognition on October 2
and 17, 1991, and that the Respondent has failed and refused
to recognize and bargain with the Union. These amendments
were not objected to and were allowed.
(b) Also during the hearing, the Respondent moved to
withdraw the paragraph in its answer entitled ‘‘Affirmative
Defense’’ alleging that its refusal to recognize the Union was
based upon a good-faith doubt as to the majority status of
the Union. This motion, likewise, was not objected to, and
was granted.
From an examination of these actions of the parties, the
stipulations, withdrawals and admissions, and from the state-
ments of the parties, I find that the Respondent is not con-
testing refusals to bargain, and that it will accept a bar-
gaining order based on the allegations.
The sole issue which was litigated and is left for me to
decide is the question of whether the Respondent unlawfully
refused to rehire Donald Chadwick, Frank Gallardo, and
John Abron, former employees of Champion Commercial in
its Champion Rivet division.
E. The Failure to Rehire
Donald Chadwick appeared to me to be a credible witness.
Nothing in his testimony was denied or controverted by any
other witness and I find that his description of his experience
with Champion Commercial and Champion Rivet was as he
described it.
Chadwick worked for Champion Commercial for 29 years
as of September 1991. As noted above he was president of
the Charging Party Union and had held that office for at least
23 of those years.5
At Champion Commercial, Chadwick testified that he ran
drill presses, acted as cold header helper, was a packer, oper-
ated shears, and ran milling machines or broacher, grinders,
and stampers. He had never worked in the rivet division be-
fore the Commercial operation closed down early in 1991.
His work at Champion Commercial was exemplary and is
testified to by an undated6 letter addressed ‘‘to whom it may
concern’’ from D. J. Chrysler, vice president of manufac-
turing at Champion Commercial. Chrysler commented on
Chadwick’s ability in handling ‘‘virtually all the equipment
in our secondary machining operations’’; his near-perfect at-
tendance record for ‘‘many, many, years’’; his fair and hon-
1103CHAMPION RIVET CO.
7 Duke had been fired, before all this happened, for poor attend-
ance. After returning to work, he again had trouble getting to work
and left the Company again.
est work as a union representative; and his willingness to
help his fellow employees.
Frank Gallardo, who also appeared to be a candid and
truthful witness, and whose testimony was not denied by any
other witness, testified that he started at the rivet division in
November 1962 and moved to the manufacturing division in
August 1963. He remained there until the division closed in
December 1990, then went back to the rivet division. At
Commercial’s manufacturing division, Gallardo drove a
towmotor. He was on the night shift for 13 years, and while
he was there served as union steward from 1970 to 1976.
When he came over to the rivet division in late 1990,
Gallardo drove a truck and towmotor, unloaded steel, packed
rivets, ran the shears, and assisted on the cold header.
John Abron was hired by Commercial in February 1973
and worked in manufacturing until that division was shut
down, then went to the rivet division in December 1990.
Abron had served the Union as a steward and as committee-
man. For the last 3 years of his employment he was the
Union’s secretary-treasurer. At the manufacturing division
Abron was a set-up man on drill presses, roll machines, and
grinders. He also did maintenance and machine repair and
tool making. When he got to the rivet division he did pack-
ing, drove the towmotor and the company truck, operated the
shears, and assisted on the hot header machine.
Abron testified that in the period before the rivet division
was sold, Rich Huffman, his supervisor, told him he wanted
him to be his set-up man in the new operation. Huffman tes-
tified here for the Respondent and, while he said that he did
not recommend Abron for rehire it was because he was less
qualified than Clayton Frazier. Huffman did not deny that he
told Abron that he would like to have him for his set-up man
in the new operation.
The evidence introduced by Respondent showed that the
decisions as to who was to be rehired after Champion Rivet
closed down in August 1991, then reopened 3 weeks or so
later, were made before the shutdown, and that Rich
Huffman made recommendations to Janos Szigeti, based in
part as Huffman’s own judgments and those of hot header
operator McArthur Bishop. Szigeti, in turn passed these rec-
ommendations on to Brian Adams, the personnel manager at
Hogen, and to Terry Profughi, the head of TecMetal. So
when the employees were assembled on August 23 to hear
Botta tell them that Champion Rivet had run out of money
and was closing down, the structure of the new organization,
and staffing, was already set.
The new operation was, to use a current, overworked, ex-
pression, ‘‘leaner’’ than before. Thus, as testified to by Clay-
ton Frazier, a tool and die maintenance man, there were to
be only six employees at the new Champion rivet division
of Hogen Industries: Bishop, Frazier, Campbell, Szilpal,
Tobay, and Ken Huffman.
McArthur Bishop had run the hot header when the rivet
division was located in East Chicago, Indiana, and he moved
east with the division at the beginning of 1991, or late in
1990. The hot header operation consists of taking a 30-foot
piece of stock, sheared to the required length for the par-
ticular job, then heating the pieces to 4000 degrees Fahr-
enheit, and hitting them with an instrument to form a ‘‘hot’’
head. This is a hard, very hot, and physically demanding job.
The only person in the Company who could, or can, perform
it is Bishop. Plant Manager Szigeti indicated that if Bishop
was ill, or on vacation, the hot header was just shut down.
The hot header job required a helper, primarily to steady the
stock as it goes through the shears. In August 1991, Clayton
Frazier was assigned this duty, but he was soon replaced by
a former employee, Bob Duke, who himself left soon after
being hired.7
Cold headers used coils of wire, sheared lengths of wire
and headed them cold, without heating. Mike Szilpal and
Bruce Campbell operated these machines.
There was a small cold header, used to make a smaller di-
ameter product, and this was run by Ron Tokay.
The sixth employee of the new ‘‘leaner’’ Champion Rivet
was to be Rick Huffman’s son, Ken, but Ken had some prob-
lem or other with the physical examination required by
Hogen, and he never reported to work. He was to perform
general utility work, and to operate the rolling machine, used
to remove seams and de-burr finished rivets.
After the operation started, the Company hired Bob Duke,
as noted above, and Greg Kilbowski, as a hot header trainee,
but Kilbowski only stayed for a week. The Company also
hired an employee named Billingsley, who transferred from
another division of Hogen, and Gerald Williams. At the time
of this hearing, Williams was still working at the Company,
primarily doing packing and drilling.
Along with these full-time hires, the Company has used a
number of part-time people, some if not all from employ-
ment services. The Company has also obtained temporary
employees through the Urban League, who were paid
through grants arranged by the League.
Szigeti was asked specifically why the Company did not
rehire Chadwick, Gallardo, and Abron. He described
Chadwick as ‘‘not a productive employee. His work pro-
ficiency was quite poor and he lacked the work ethic I re-
quired to make Champion Rivet work.’’ Gallardo was ‘‘able
to drive a forklift. He was not able to pack and the product
would come back to be packed again after it was pointed
out. He lacked the work ethic.’’ Abron ‘‘couldn’t adapt. He
had a work ethic, but it wasn’t—there wasn’t a drive there.
There wasn’t a desire to work with the team and, hey, let’s
get the job done. You couldn’t motive[ate] him to work.’’
Elaborating on these characterizations, Szigeti stated that
he got anywhere from 900 to 2000 pieces a day from the
drill press, but that Chadwick could produce 300 pieces on
‘‘a good day for him.’’ When they put Gallardo on the pack
line he ‘‘would make up boxes, build a wall of boxes, and
he’d be sleeping behind the wall by the pack line. He
wouldn’t pack. He, for whatever reason, did not want to un-
derstand that he needed to pack and pack it correctly and
pack what he was told to pack.’’
As to Abron, Szigeti testified that he was assigned to the
roller, and that he was not capable of the combination re-
quired. The machine will process 1000 pieces an hour, but
Abron did not feed the pieces into the machine properly, it
jammed up and cost the Company $500 to $1000 worth of
dies. This happened once, but Szigeti could not remember
when, later saying that it was in July 1991.
Szigeti also testified that he knew Chadwick was the union
president. He denied that he knew that Gallardo was any-
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
thing but a member of the Union, and did said that he knew
that all of the employees, including Abron, were members of
the Union. Szigeti did say that neither Chadwick nor
Gallardo worked for Champion Rivet after January 1991, but
continued to work for Champion Commercial under Presi-
dent Vince Botta. They were employed in cleaning up the
old Commercial area, but Szigeti said that if he or Huffman
needed help they would go to Botta and request that
Chadwick or Gallardo be sent over to Champion Rivet. This
was done, but when Szigeti had complaints about
Chadwick’s low performance, or Gallardo’s sleeping behind
a wall of boxes, Botta replied that they were working for
him and they would help out at Champion Rivet when he
didn’t need them. McArthur Bishop, the hot header operator,
testified that during 1991 John Abron acted as a helper.
Bishop stated that, on Huffman’s request, he had Abron do
some work on tools and dies. Abron refused to do what
Bishop wanted, in the way that he wanted it done. Abron
wanted to ‘‘do it his way.’’ Bishop spoke to Vince Botta,
and to Huffman, and finally Bishop told Huffman that he did
not want Abron doing anything else for him. On cross-exam-
ination, Bishop said that he had told employees that he didn’t
‘‘give a damn for the Union,’’ but there was no elaboration
on this remark.
Rich Huffman had been a supervisor for Champion Rivet
in East Chicago and moved with that operation to Cleveland
early in 1991. He continued to supervise the employees of
Champion Rivet at Cleveland. Huffman testified that he
made recommendations to Szigeti and Vince Botta, for em-
ployees to be employed by Hogen Industries. He rec-
ommended that Bishop, Frazier, Tobay, Szalpal, Campbell,
and his son Ken Huffman be hired for the new Champion
rivet division of Hogen.
Huffman stated that he recommended the people who were
experienced and who could produce efficiently for the Em-
ployer. In Huffman’s opinion Chadwick was not qualified to
perform any of the jobs they were going to do (in the new
operation). Abron was not recommended because his quali-
fications were ‘‘far lower’’ than those of Clayton Frazier,
who was recommended. Huffman felt that Gallardo’s work
performance was ‘‘very unacceptable’’ and there was no job
that we were hiring that he could perform.’’ Huffman knew
that Chadwick was the union president, and that Abron held
some union office, but he denied that these union positions
had any affect in his decisions not to recommend them for
rehire.
On cross-examination, Huffman stated that he knew that
Champion Rivet had a progressive disciplinary procedure,
calling for a progression of verbal warning, written warning,
suspension, and discharge. In this connection, the General
Counsel asked Huffman if he knew what happened to the
personnel records of Champion Commercial. Huffman said
he didn’t know. The General Counsel and I then had a col-
loquy on the record about these records. The General Coun-
sel stating that he had asked Champion Rivet for them and
that they did not have them. Champion Commercial was out
of business. He did not know whether there were any
records, or where they were. He did say that Botta was there
(in the building), but when I asked if he wanted to put Botta
on the witness stand, counsel for the Respondent stated that
he wanted to move on, and finish the hearing on that day.
The General Counsel did not press the issue and Botta was
not called to testify.
I have previously mentioned the testimony of Chadwick,
Gallardo, and Abron as to their duties, and what jobs they
performed. This testimony was corroborated by Clayton
Frazier, who observed their working hours during the Janu-
ary-to-August period. Chadwick did admit on cross-examina-
tion that he had done cleanup work, snow removal, and mop-
ping up after leaks, but all of the alleged discriminatees stat-
ed that they had done their jobs satisfactorily.
F. Analysis and Conclusions
1. The 8(a)(1) and (5) allegations
The parties have stipulated that the Union was the exclu-
sive collective-bargaining representative at all times material
herein for employees in the following unit:
All production and maintenance employees and truck
drivers of the Employer’s Cleveland, Ohio operations,
excluding office, clerical employees, and professional
employees, guards and supervisors as defined in the
Act.
The parties have further stipulated that Hogen Industries
and HI TecMetal Group are successors to Champion Com-
mercial Company within the meaning of NLRB v. Burns Se-
curity Services, 406 U.S. 272 (1972). As I have found,
Champion Rivet, Hogen Industries, Inc., and HI TecMetal
Group are a single employer within the meaning of the Act.
The parties stipulated that, on August 22, 1991, the former
Champion Rivet Company, then a division of Champion
Commercial Company, laid off its entire work force, and en-
tered into a management agreement whereby Hogen Indus-
tries, Inc. would manage the assets of Champion Rivet, hir-
ing its own employees, who happened to be former employ-
ees of Champion Rivet.
At the hearing, the Respondent amended its answer to
admit that it had unlawfully assisted in the preparation of a
petition stating that the employees who signed the petition
did not wish to be represented by the Union. The petition
was circulated by admitted Supervisor Janos Szigeti (referred
to in the complaint as James Szigeti), all of those then em-
ployed by Respondent signed it. The Respondent also with-
drew its affirmative defense to the complaint, to the effect
that Respondent had a good-faith doubt of the Union’s ma-
jority status.
The parties stipulated that the Union demanded recognition
for employees in the above unit on October 2 and 17, 1991,
and that the Respondent refused to recognize the Union in
a letter dated October 25, 1991, based on the petition which
it had prepared and circulated among its employees.
These stipulations and admissions show that the Respond-
ent has violated Section 8(a)(1) of the Act by the initiation,
preparation, and circulation of the petition about October 23,
1991, causing its employees to signify their desire not to be
represented by the Union; Bay Area Mack, 293 NLRB 125
(1989).
On the basis of its admissions that the Union was the stat-
utory collective-bargaining representative of its employees in
October 1991, the several named Respondents are a single
employer, the successor under Burns, supra, to the former
1105CHAMPION RIVET CO.
8 I cite this as evidence of Respondent’s antiunion motivation even
though it occurred almost 2 months after the layoff of Champion
Rivet’s work force. The testimony by Chadwick, that he asked to
talk to Profughi after the August 22 meeting but was refused permis-
sion to do so, is not alleged in the complaint as a refusal to bargain,
but it is additional evidence, closer to the layoffs, of continuing
union animus.
9 251 NLRB 1083 (1980); see NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983).
10 He was not asked, nor did he explain, why these three employ-
ees were not even invited to file applications for employment on Au-
gust 22.
11 I do credit Bishop’s testimony that Abron did not do what Bish-
op had told him, but there is no evidence that anyone except Bishop,
who was not a supervisor, ever spoke to Abron about the problem.
employer Champion Commercial, and by its admission that
it refused recognition of the Union on October 25, falsely
claiming that it had a good-faith doubt of the Union’s major-
ity status in the unit described above, I find that the Re-
spondent has violated Section 8(a)(1) and (5) of the Act.
2. The 8(a)(3) allegations
The General Counsel has established antiunion animus by
Respondent through the credible and undenied testimony of
Chadwick that Terry Profughi had told a group of manage-
ment people and employees, in November 1990, that he did
not want to have a union in any of his plants. This, in itself,
was not alleged as a violation of law and, from the way it
was phrased, it seemed to contain no threat nor promise
which could have rendered it unlawful, but it does indicate
an attitude in opposition to the unionization of Respondent’s
employees.
This attitude, I find, was put into action by the Respond-
ent’s admitted unlawful refusal to bargain, and its fraudulent
circulation of an antiunion petition at that time.8
I find that the antiunion hostility shown by these incidents,
together with the status of Chadwick and Abron as union of-
ficers; Respondent’s holding of a secret meeting with the six
people who were to be offered reemployment, and its failure
to notify Chadwick, Gallardo, and Abron either as union of-
ficials, who should have been consulted about plans for re-
hiring and reopening by an admitted single employer, and
successor, or as individuals; lead to the conclusion that the
General Counsel has established a prima facie case under
Wright Line.9
The Respondent argues that it would have made the same
decision about rehiring Chadwick, Gallardo, and Abron de-
spite any union activity by any or all of these employees.
To establish this, the Respondent presented the testimony
of Edward M. (Mike) Robinson, general manager of Hogen
Industries, Inc., who stated that Champion Rivet was an un-
profitable business when Hogen took over in August 1991,
and that he ordered Janos Szigeti to hire as few people as
possible to get them going, but to get the most qualified.
These sentiments are irreproachable in theory, but they were
not shown to be based on real levels of pending business,
orders in process or prospective orders, or the financial re-
quirements for continued operations. There are no statistical,
accounting, or business necessities shown to justify not hir-
ing the discriminatees here.
The testimony of Szigeti likewise fails to convince me that
Chadwick, Gallardo, and Abron would not, in any event have
been hired. When called as a witness by the General Counsel
Szigeti affirmed that he had given an affidavit to the Board
in which he stated that the three discriminatees were not
qualified for the positions which were filled.10 Later, as we
have recorded above, Szigeti added to their lack of qualifica-
tions, a number of deficiencies; Chadwick was too slow,
Gallardo built a bunkhouse for himself out of shipping
boxes, Abron ruined dies on the roller machine. But, when
asked why they were not reprimanded, disciplined, or fired,
Szigeti stated that he didn’t know about any disciplinary pro-
cedures, but that he had gone to Vince Botto to complain
about Gallardo and Chadwick, only to be rebuffed by Botto’s
statement that they worked for him, and could not be fired
by Szigeti.
However, Botto, who was present just outside the hearing
room (presumably with other sequestered witnesses), was not
called by Respondent to corroborate this story. No payrolls
were submitted, or other personnel data shown, to establish
that Chadwick, Gallardo, and Abron were somehow not em-
ployed by Champion Rivet. In fact the evidence shows that
they were employed in the rivet division, even though they
may have done cleaning or snow removal in other parts of
the plant.
I don’t think that Szigeti went to Botto, or anyone else,
about these employees, even assuming that they had personal
shortcomings.11 Indeed I infer and find that Botto, if he had
been called to testify, would have testified contrary to the
Respondent’s position, and Szigeti’s testimony. Rich
Huffman also testified about the reasons for not rehiring
Chadwick and the others, but he did not corroborate Szigeti.
Huffman, said, simply, that the three were not qualified, but
gave no reasons for those conclusions.
I would point out, in addition, the fact that Respondent
hired numerous full-time and part-time employees after be-
ginning the new operation at Champion Rivet in August
1991. There were no explanations why Chadwick, Gallardo,
and Abron were not called to fill these positions.
I therefore find that the Respondent has not presented evi-
dence which is sufficient to over come the prima facie case.
I find that Donald Chadwick, Frank Gallardo, and John
Abron were not rehired because of their identification with
the Union, and in order to keep out the Union, in violation
of Section 8(a)(1) and (3) of the Act. U.S. Marine Corp., 293
NLRB 669 (1989); Allegheny Graphics, 307 NLRB 984
(1992).
THE REMEDY
Having found that the Respondent has engaged in conduct
in violation of Section 8(a)(1), (3), and (5) of the Act. I shall
recommend that it cease and desist therefrom, and that it take
certain affirmative action necessary to effectuate the policies
of the Act.
Having found that the Respondent unlawfully refused to
rehire Donald Chadwick, Frank Gallardo, and John Abron in
violation of Section 8(a)(1) and (3) of the Act, I recommend
that it be ordered to immediately offer them reinstatement to
their former positions or, if those positions no longer exist,
then to substantially equivalent positions, and make them
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whole for any loss of wages they may have suffered as a re-
sult of its discrimination against them, with interest thereon
computed in accordance with F. W. Woolworth Co., 90
NLRB 289 (1950); New Horizons for the Retarded, 283
NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The Respondent, a single employer, is an employer en-
gaged in commerce within the meaning of Section 2(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 refusing to bargain with the Union and by circu-
lating a petition for its employees to disassociate themselves
from the Union, the Respondent has violated Section 8(a)(1)
and (5) of the Act.
4. By refusing to rehire Donald Chadwick, Frank Gallardo,
and John Abron, the Respondent has violated Section 8(a)(1)
and (3) of the Act.
5. The unfair labor practices found to have been com-
mitted by Respondent affect commerce within the meaning
of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]