E & L Plastics Corp.

National Labor Relations Board - Board Decisions

Jan 14, 1992

305 N.L.R.B. 1119 (N.L.R.B. 1992)

1119
305 NLRB No. 176
E & L PLASTICS CORP.
1 The Respondent filed a motion to strike the General Counsel’s
brief in support of the administrative law judge’s decision in its en-
tirety and portions of the answering brief. The General Counsel filed
a response in opposition to the Respondent’s motion. After review-
ing the parties’ submissions, we deny the Respondent’s motion to
strike the General Counsel’s brief in support of the judge’s decision.
However, we grant the Respondent’s motion to strike the gratuitous
and inflammatory characterizations of the Respondent and its coun-
sel in the General Counsel’s brief.
2 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.
Additionally, the Respondent asserts that the judge’s findings are
a result of bias. After a careful examination of the entire record, we
are satisfied that this allegation is without merit.
3 Although employee LaJoice contacted the Union in early Decem-
ber, there is no evidence of any overt union activity prior to the De-
cember 20 meeting.
4 All dates are in 1988 unless otherwise indicated.
5 The judge’s decision contains some suggestion that the relevant
eligibility language was not in fact prepared by the Respondent’s
consultant. The proposal is in evidence, and the General Counsel has
presented no reason to question its authenticity. Moreover, what is
relevant for purposes of analysis is that the language was prepared
and adopted by the Respondent prior to the union campaign, and not
who actually drafted the language.
E & L Plastics Corp. and Steven D. Zidek and John
Laut. Cases 30–CA–10725 and 30–CA–10725–2
January 14, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On July 29, 1991, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel filed together an answering brief
and a brief in support of the judge’s decision.1
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 and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions as modified below and to adopt the rec-
ommended Order.
The judge found that the Respondent violated Sec-
tion 8(a)(1) of the Act by promulgating and maintain-
ing a pension and profit-sharing plan which excluded
from eligibility members of a collective-bargaining
unit. Finding that the plan was announced to employ-
ees during the midst of the union campaign and shortly
before the Respondent’s antiunion speech, the judge
concluded that the language of the plan was intended
to discourage union activity. We adopt the judge’s
conclusion that the plan unlawfully limited eligibility
to nonbargaining unit employees, but we do so only
for the following reasons.
The Respondent’s employees attended their first
union organizational meeting, at which cards and lit-
erature were distributed, on December 20, 1988.3 The
judge found that Esser, the Respondent’s president,
first learned of the union activity in early January
1989. The Respondent’s ‘‘Handbook of Corporate
Policies,’’ which was distributed to employees on Jan-
uary 9, 1989, included in pertinent part the following
provision:
Pension: We have a 401-K Pension and Profit
Sharing Plan available to all employees age 21
and over with a minimum of 1 year of service,
except those who are members of a collective bar-
gaining unit. . . .
The uncontroverted testimony, corroborated by docu-
mentary evidence, does not support a finding that the
Respondent prepared or implemented either its plan or
the relevant eligibility language in order to discourage
union activity. On May 6, 1988,4 the Respondent’s
board of directors resolved to establish a retirement
plan. On October 31, the Respondent presented to its
board of directors a plan that was proposed by its out-
side consultant. The proposed plan, which was drafted
and sent to the Respondent for review well before the
commencement of union activity in December, in-
cluded the following provision:
Eligibility: Recommended that all employees age
21 and over, except those who are members of
a collective-bargaining unit, with a minimum 1
year of service be eligible.5
On November 3, the Respondent resolved to adopt the
proposed plan subject to a change in the effective date
of coverage and to certain minor revisions; final adop-
tion of the plan required the approval of the consulting
firm, which would also serve as the plan’s adminis-
trator. At a meeting held on December 8, a representa-
tive from the consulting firm discussed the basic provi-
sions of the plan with the Respondent’s employees.
After receiving notice in late December that the plan
had been approved, the Respondent inserted informa-
tion about the plan, including its eligibility require-
ments, into the handbook that was being prepared for
the employees. The handbook was distributed to the
employees on January 9, 1989, shortly after its com-
pletion. Based on the above, we find that the plan’s
eligibility language was proposed, adopted by the Re-
spondent, and discussed with the Respondent’s em-
ployees prior to any union activity. We therefore reject
the judge’s finding that the implementation of the pen-
sion and profit-sharing plan was timed to coincide with
the Respondent’s antiunion speech and was part of an
effort to undermine union activity.
1120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates will be in 1989 unless otherwise indicated.
2 An allegation regarding one other employee, Robert Herzog, was
withdrawn at the start of the hearing and thereafter was dismissed
on the record.
We find, however, that the pension and profit-shar-
ing plan as presented in the Respondent’s handbook
unlawfully conveyed to employees the impression that
they would automatically lose retirement benefits if
they were ever to choose union representation. There
is nothing in the record to dispel the message that the
loss of benefits would be the necessary result of choos-
ing union representation. See A. M. F. Bowling Co.,
303 NLRB 167, 170 (1991) (respondent unlawfully
maintained a severance plan excluding from eligibility
employees who were members of a bargaining unit).
Accordingly, we agree with the judge’s conclusion that
the Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining a pension and profit-
sharing plan limited to nonbargaining unit employees.
Based on our rationale, and contrary to the judge, we
do not find that the unlawful maintenance of the plan
is an element of the General Counsel’s prima facie
case with respect to the unlawful discharges of em-
ployees Zidek, Laut, and LaJoice.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, E & L Plastics Corp.,
Lannon, Wisconsin, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
Rocky L. Cole, Esq., for the General Counsel.
Donald J. Cairns, Esq. and Gerald A. Einshon, Esq., of Mil-
waukee, Wisconsin, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW JR., Administrative Law Judge. This
matter was heard in Milwaukee, Wisconsin, on February 4
through 6, 1991. Subsequently, after an extension of the fil-
ing date, briefs were filed by Respondent and the General
Counsel. The proceeding is based on charges filed December
12 and 13, 1989,1 as amended, by individuals Steven D.
Zidek and John Laut. The Regional Director’s amended, con-
solidated complaint dated July 27, 1990, alleges that Re-
spondent E & L Plastics Corp., of Lannon, Wisconsin, vio-
lated Section 8(a)(1) and (3) of the National Labor Relations
Act by promulgating and maintaining a rule which excluded
members of a collective-bargaining unit from participating in
its pension and profit-sharing plan and by discharging em-
ployees Steven Zidek, John Laut, and Peter LaJoice.2
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture and sale of
milled plastic and fiberglass parts. It annually ships goods
valued in excess of $50,000 from its Lannon facility to other
enterprises in Wisconsin that are directly engaged in inter-
state commerce to points outside Wisconsin. It admits that at
all times material is has been an employer engaged in oper-
ations affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act. It also admits that the Commu-
nications Workers of America, AFL–CIO is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. CREDIBILITY
In the following review of the record I set forth what I
deem to be the relevant, credible evidence and, for the most
part, do not discuss testimony of record that I have evaluated
but considered to be unreliable or not relevant.
In those circumstances where the General Counsel’s and
the Respondent’s witnesses have given conflicting accounts,
I have generally credited the testimony of the employee wit-
nesses who testified in a calm and objective manner and
maintained the integrity of their direct testimony under cross-
examination. Their testimony was in sharp contrast to that
given by Shop Supervisor Russell Oechsner (now plant man-
ager) and Company President Frank Esser, who, under exam-
ination by the General Counsel answered with a generally
hostile demeanor and with testimony that was replete with
assertations by each that: ‘‘I don’t know,’’ I don’t recall.’’
The testimony of both of these principal company witnesses
was also argumentative and evasive as illustrated in the fol-
lowing examples:
Questions by the General Counsel to Esser:
Q: But those pipes fell down one time, didn’t they?
A. I don’t know.
Q. You’re the president, sir?
A. I don’t know when we run out of toilet paper ei-
ther. I’m the president.
Q. Did the pipes that you say were jamming up—
did it ever come to your knowledge that they caved in?
A. I know that one pipe collapsed . . . .
Questions by the General Counsel to Oechsner:
Q. Isn’t it a fact that in January shortly after you be-
came a foreman you went to the office and complaint
[sic] to Mr. Esser about Doug Du Quaine doing a poor
job; isn’t that accurate?
A. No. I don’t—I may have talked about Doug at
one time or another, but I don’t know what you’re talk-
ing about.
Q. Well, let me try to refresh your recollection. Isn’t
it a fact that Mr. Steve Zidek and Mr. Frank Esser were
in Mr. Frank’s Esser’s office, and you were explaining
that Doug Du Quaine was a slow worker; isn’t that a
fact?
A. No, I don’t.
Q. Is it possible that happened?
A. I don’t be believe so.
Q. Did you ever make any complaints or talk to Mr.
Esser about Doug Du Quaine’s work?
A. Sure. Yes.
Q. And you talked about the quality of his work;
isn’t that accurate?
A. That I don’t know of.
Q. Well, what did you talk about in terms of his
work?
1121E & L PLASTICS CORP.
A. I don’t know. To be honest, I may have said
something about—may have mentioned his quality. I
may have mentioned that he was slow at one time or
another. I don’t know. I have no idea.
Q. And you were stealing tools from E & L Plastics?
A. No.
Q. Weren’t you taking tools home so you could use
them for your milling machine?
A. Can I explain?
Q. No, sir. Were you taking the tools home so you
could use them for your milling machine, right?
A. Yes.
Q. And you told that to Mr. Peter La Joice?
A. I don’t know.
Q. You don’t know. Did you?
A. I don’t know.
Q. Did you tell Mr. Steve Zidek?
A. I don’t know.
Q. Would fiberglass parts be in competition with E
& L Plastics?
A. Yes, that would be.
Q. Did you, in fact, show a blueprint plan to Mr.
Steve Zidek before you became foreman regarding a fi-
berglass part?
A. I don’t know.
Early in the General Counsel’s examination of the com-
pany president, Esser was questioned about the speech he
gave to employees and said he read it word for word without
deviation. He then testified to using certain language that
was not in page 6 of the exhibit given to the Board in re-
sponse to a subpoena. He was then confronted with a similar
exhibit that had an additional handwritten seventh page and
he made a motion as if to throw the document at the General
Counsel. Esser admitted that he was ‘‘irritated’’ by the ques-
tion and I find that his reaction, as if caught in a deception,
displayed a demeanor that reflects adversely on his credi-
bility.
In summation, my overall evaluation of Esser’s and
Oechsner’s testimony reveals answers that are repeatedly
equivocal, argumentative, distorted, and contradictory. Under
these circumstances, I find that their testimony is inherently
untrustworthy and unreliable and, accordingly, I will not
credit their testimony where it is in conflict with the credible
testimony of other witnesses or where it is otherwise
uncorroborated by events, documents, or other testimony.
III. THE ALLEGED UNFAIR LABOR PRACTICES
In 1984, Frank Esser, a self-employed machinist who
made plastic parts in his garage, joined with his brother Nick
Esser, and Roger Luther, a mutual friend, and formed E &
L Plastics as a job shop to manufacture plastic parts. Frank
Esser became president, Roger Luther, vice president (and
initially, shop supervisor), and Nick Esser, secretary/-treas-
urer. In June 1989, when several employees were discharged,
Russell Oechsner was shop supervisor.
The Company was first housed in a small industrial com-
plex in Germantown, Wisconsin, and had one additional em-
ployee. The Company expanded and successively added em-
ployees and machinery and moved to larger facilities in both
1985 and 1986, and in February 1988 it moved to its current
location. By then it had between 20 and 25 employees but
did not have any formal or recognized personnel policies.
Steven Zidek, who is Vice President Luther’s nephew, and
John Laut were hired in 1985, and Peter Lajoice and Russell
Oechsner were hired in 1987.
After the Company moved in February 1988, it failed to
install a dust collection system until June, when the system
used at the prior facility was moved. This system was inad-
equate to handle the dust produced by all the new machinery
and the material kept jamming up in the pipes and on at least
one occasion a pipe collapsed from the apparent weight of
the dust. Employees complained about the dust problem and
in November 1988, the Company hired a professional in-
staller to replace the system with larger pipes.
A month or two after moving Esser reacted to suggestions
of business acquaintances and began gathering examples of
personnel policies at other companies. In May he held a
board of director’s meeting and a decision was made to es-
tablish a 401(k) retirement plan. Nick Esser was directed to
check into the matter and he ultimately presented a plan to
the board at a meeting on October 31, 1988.
Respondent reviewed the plan and made some changes, in-
cluding change to make the plan effective December 31,
1988, so that it would cover the 1988 calendar year. Final
adoption of the plan was made subject to its consultant’s ap-
proval. However, on December 8, the Company held a meet-
ing with employees and gave them their first explanation of
the basic provisions of an anticipated pension plan.
Meanwhile, the Company also began to formulate a hand-
book of corporate policies and, when its consultant approved
the pension plan, the Company in late December finalized its
so-called Corporate Policy Handbook, by incorporating a ref-
erence to the 401(k) pension and profit-sharing plan. On Jan-
uary 4 or 5, 1989, the Company completed the handbook and
purchased the binders for employee copies, and on January
9, 1989, it issued copies of the handbook to employees.
The pension plan (as assertedly proposed by the consult-
ant) contained the following provision regarding eligibility:
Eligibility: Recommend that all employees ages 21 and
over, except those who are members of a collective-bar-
gaining unit, with a minimum of 1 year of service be
eligible. One year of service is defined by working
1,000 hours or more.
After the Company’s final approval, it inserted into the
handbook, the following language regarding pension eligi-
bility:
Pension: We have a 401-K Pension and Profit Sharing
Plan available to all employees age 21 and over with
a minimum of 1 year of service, except those who are
members of a collective bargaining unit.
Esser testified that he did not have the plan reviewed by
any attorney and that the Company merely accepted the lan-
guage proposed by the consultant.
Meanwhile, in the fall of 1988, a number of employees,
including Oechsner, Zidek, Laut, LaJoice, and others had
began to discuss their concerns about dust and ventilation
problems as well as job safety, pay, and profit sharing and,
in December, the poor performance of the new shop super-
visor, James Enott. Enott had come to the Company from an-
other business after Roger Luther who acted as the Com-
pany’s shop supervisor, complained to Esser that the job of
1122 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 I do not credit this testimony to the extent that it is a fact that
Martinez used this word. Rather, inasmuch as Martinez was not
called to corroborate Esser, I conclude that the so called harassment
was a conclusion reached by Esser to adversely describe the Union’s
second request that Martinez solicit authorization cards on the sec-
ond shift.
shop supervisor was causing him personal problems and was
too stressful, that he could not sleep, and that the job was
‘‘getting to him.’’ Luther testified that in November he asked
to be relieved from the supervisory position because he could
not discipline employees, he did not know how, and because
he had too much work involving special projects.
Oechsner admitted that when Enott was hired he become
upset with Supervisor Enott’s performance and also was
upset that Esser had hired ‘‘somebody outside the Company
that didn’t have experience with the kind of work we were
doing.’’ As a result of the employees’ group discussions and
shortly after they were exposed to the new supervisor’s per-
formance, ‘‘everyone’’ decided they needed a union and
‘‘should go for it.’’ In early December LaJoice got the tele-
phone number of Union Business Agent Peter Messe from
Steve Zidek’s father (Roger Luther’s brother-in-law), who
had been a president of the local Communications Workers
Union for over 16 years. (Luther admitted he knew Zidek’s
father had been a union president). LaJoice initiated the
union action specifically because of Zidek’s family relation-
ship to Vice President Luther, Luther’s knowledge of Zidek’s
father’s union activities with the Communications Workers,
and Zidek’s concern that the blame for the union activity
would fall on him.
LaJoice set up a union meeting at his home to take place
on December 20, and he informed other employees, includ-
ing Oechsner. Oechsner was described as gung-ho for the
Union and he told everyone he would attend but did not do
so. At this meeting, Union Representative Messe, from the
Communications Workers, asked questions about why they
wanted a Union and then handed out union literature and au-
thorization cards. Zidek, Laut, and LaJoice became the ‘‘in-
plant organizing committee’’ and after the Christmas and
New Year holidays LaJoice and Zidek began to get union au-
thorization cards signed during the lunch hour at work. Laut
also was helping in the union organizing by spreading the
word about the Union. Laut identified Oechsner, Duquaine
(who was a close friend of Oechsner), Robert Herzog, Tod
Laloney, Zidek, and LaJoice as employees in the machine
area who he ‘‘talked the union up’’ to. He also tried talking
to Dave Checolinski but was told he ‘‘didn’t want nothing
to do with it.’’ Duquaine and Oechsner each signed a union
authorization card on January 3, 1989.
Esser testified that second-shift employee Lewis Martinez
told him about the union organizational attempt around the
beginning of the year. He also said that Martinez complained
about being harassed by the Union,3 saying that LaJoice had
asked him to solicit authorization card signatures on the sec-
ond shift, and that he had at first refused but then did so
after Lajoice repeated the request.
Oechsner admits that few days after signing an authoriza-
tion card he told Esser that he and others had signed cards,
Esser told him to get it back. Esser contacted his attorney
and then told Oechsner that he had the legal right to get it
back and Oechsner (and his friend, Duquaine) then asked
LaJoice for their cards. LaJoice initially refused but said he
would destroy the cards and did not return them.
During this same period of time Oechsner made arrange-
ments with Esser for Respondent to purchase (for $3000) a
milling machine that Oechsner had acquired and was using
in his garage after work for the independent production of
milled products.
On Thursday, January 12, Esser, who said he was ‘‘dis-
appointed’’ about the union activity, made a speech to all the
employees in which he forcefully spoke against any Union
and specifically mentioned harassment by the Union and told
the employees that they had the legal right to get their au-
thorization cards back.
Zidek testified that on January 9, LaJoice told him that
something funny was going on because Oechsner was asking
for his card back. Then, a few days before the meeting and
Esser’s speech, Esser and Luther called Zidek into Luther’s
office. Zidek was told by Esser that is was hard to do but
he was going to have to let Zidek go because of his bad atti-
tude and his influence on others. Esser admitted he had no
problems with Zidek’s work and after a long discussion
about working conditions and profit sharing and raises, Esser
finally said he was just going to let things go and see what
happens. Esser gave his speech a few days latter and the
union organizational activity ceased and never resumed.
The following Monday, January 16, Respondent promoted
Oechsner to the position of shop supervisor.
Oechsner asserts that during the next several months
LaJoice, Zidek, and Laut were uncooperative and unproduc-
tive employees and he repeatedly communicated complaints
in this respect to Esser. Despite these asserted problems,
Zidek was transferred from his regular skilled work operating
a computerized milling machine to a position as inspector,
Laut was given additional duties and made responsible for
the toolroom, and LaJoice continued his regular job running
a milling machine and he received no warnings or discipline
regarding any work problems. LaJoice testified, however,
that his relationship with Oechsner began to deteriorate and
he believed that Oechsner began to continually harass him on
the job. He described an example of being assigned a job at
2:30 p.m. that had to be out the next day. LaJoice told
Oechsner that the job is normally run on the faster, comput-
erized CNC machine (that LaJoice was not experienced
with), and that his machine wasn’t fast enough to get it out
in a day. Oechsner still gave him the job and the next day
accosted him on four separate occasions and asked if the job
was done and what was holding it up. At 2 p.m. Oechsner,
who is several inches and pounds smaller the LaJoice, got
right up in LaJoice’s face, put his hand on LaJoice’s chest,
and told him: ‘‘If you can’t get the job done get your ass
the hell out’’ and ‘‘If you can’t do it maybe you ought to
go home or find another job.’’ LaJoice finally yelled at
Oechsner to ‘‘get the fuck out of my face and let me get to
work.’’ Oechsner made some comments under his breath and
walked away and LaJoice went over to Esser, when he was
seen watching them from a distance, and complained about
Oechsner’s harassment. LaJoice was never warned or dis-
ciplined over the incident and received a 50-cent-an-hour
raise shortly thereafter. On one other occasion, however,
Oechsner fired an employee for insubordination 1 day after
the event occurred and Respondent’s records showed that
1123E & L PLASTICS CORP.
other employees had occasionally received discipline for
safety and other reasons.
Respondent presented some evidence regarding ‘‘horse-
play’’ by the alleged discriminatees but it was admitted that
Oechsner himself and other employees had also engaged in
horseplay and that no one had ever been fired or disciplined
for that reason.
Oechsner did not recall seeing any of the alleged
discriminatees at his wedding on June 10 but admitted that
they were sent an invitation sometime in April.
The week prior to his wedding Oechsner became ‘‘ex-
tremely upset’’ (no specific reason was identified), went to
Esser, and told him:
That’s it. I can’t handle it anymore. Either these four
guys go, or take me off of supervision. I don’t want
anything more to do with it.
Oechsner also testified that
I told him I was sick and tired of it, so he had to make
the decision. I wanted to get rid of those guys, and that
was going to be final. Something had to happen then.
Esser told him to calm down and to wait until after his hon-
eymoon was over. When he returned Esser told him he had
decided and that Oechsner could get rid of the people under
the condition that he wait until payday and that they be told
it was a layoff so they could collect unemployment.
Oechsner told each one that it was hard for him to do it
but they were being laid off for lack of work (which was not
in fact the case), that he would give them good references,
and that they were good workers. Laut and LaJoice were ter-
minated on June 22 (payday Thursday) and Zidek’s job
ended the following Monday when he returned from vaca-
tion.
IV. DISCUSSION
The principal issues in this case arose several months after
an abortive union organizational campaign, when three union
activists were told they were being permanently laid off.
The Respondent first contends that the allegation regarding
the admitted discharge of Peter LaJoice should be dismissed
because it is untimely under Section 10(b) of the Act. Re-
spondent also contends that there is no evidence of knowl-
edge by the Respondent of union activity on the part of al-
leged discriminates Laut and Zidek.
With respect to Respondent’s 10(b) argument, it is clear
that the charges regarding Laut and Zidek were timely filed
within the 10(b) period and, as it otherwise is shown that the
legal and factual allegations concerning LaJoice arose out of
the same matters and are closely related, if not identical, to
the other pending charges. The Regional Director properly
exercised his discretion in consolidating the LaJoice charge
with the earlier and timely filed Laut and Zidek charges and
no valid basis exists for finding that the LaJoice charge is
not properly a part of this proceeding. Accordingly, Re-
spondent’s request for dismissal of the latter charge is de-
nied.
In connection with the issue of knowledge, Respondent, by
letter dated May 15, 1991, filed a pleading entitled ‘‘Citation
of Supplement Authority,’’ in which it cites the case of
Amelio’s, 301 NLRB 182 (1991), and noted that it appeared
in the May 6, 1991, edition of the Labor Relations Reporter.
By motion dated May 17, 1991, the General Counsel moves
to strike Respondent’s citation as being untimely and an im-
proper reply brief which treats an issue addressed in its origi-
nal brief, the issue of Respondent’s knowledge of concerted
activity.
The General Counsel’s motion is granted inasmuch as the
citation is irrelevant to these proceedings. Here, I find that
the matter of Respondent’s knowledge of Laut’s and Zidek’s
union activities is clearly shown to have been within the per-
sonal experience and knowledge of Shop Supervisor
Oechsner in December 1988, and January 1989 (when
Oechsner was an employee who acted in concert with the
others in discussions and in signing an authorization card),
and again in April and May 1989, when Oechsner rec-
ommended and then executing their discharges at President
Esser’s direction. It other is clear that Esser knew of the
union activity in early January 1989, when he made his
antiunion speech, a speech which effectively stopped any fur-
ther organizational activity.
It also is clear that Oechsner contemporaneously aban-
doned his initial support for the Union and pursued his own
agenda which included the profitable sale of a $3000 ma-
chine to the Respondent and his promotion to shop super-
visor. Although several months went by before any action
was taken against the union organizers, these months were
occasioned by a series of conflicts between Supervisor
Oechsner on the one hand, and on the other, his former fel-
low employees and I find that there is ample evidence to
show that Oechsner not only had knowledge of their past
union activities but also harbored a distrust or resentment to-
ward them because of his awareness of his own brief role
in their past concerted action against management (a manage-
ment he was now part of), and what he perceived to be their
seeming failure to accord him appropriate deference in his
new position. It also appears that he saw their continued
presence on the work force to be a potential threat to future
concerted activity that could affect his position as shop su-
pervisor and that he communicated these feelings to Esser.
It is well established that the motive and the knowledge of
a supervisor whose recommendation plays a part in an em-
ployment termination decision is imputable to the employer,
see JMC Transport v. NLRB, 776 F.2d 612, 619 (6th Cir.
1985), and case cited therein. Accordingly, I find that the
Respondent had knowledge of the union activities of each of
the three alleged discriminatees. In a discharge case of this
nature, applicable law requires that the General Counsel meet
an initial burden of presenting sufficient evidence to support
an inference that the employees’ union or other protected,
concerted activities were a motivating factor in the employ-
er’s decision to terminate them. Here, the record shows that
the Respondent had direct knowledge of the Union and con-
certed activities of these three alleged discriminatees.
Although Oechsner had initially supported his coworkers
and had signed an authorization card, he told President Esser
about employees signing union authorization cards and acting
upon Esser’s advice (obtained after consultation with an at-
torney), and sought to have his signed authorization card re-
turned. Esser also was told about the Union in early January
1989 by employee Martinez. Esser then spoke to Zidek about
letting him go because of his ‘‘bad attitude’’ and influence
on others and made an antiunion speech to employees on
1124 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Navin had formerly worked for the Respondent as a mill machine
operator with Oechsner (and had helped Oechsner get the job).
Navin voluntarily left Respondent in December of 1988. Navin lives
in the same small community with Oechsner and they occasionally
see each other at various bars, bowling alleys, and parks, and from
time to time at Carl’s gas station, where the quoted conversation
took place.
January 12 which effectively ended the organizational at-
tempt. Oechsner was immediately promoted to a position as
shop supervisor and the Company also purchased his milling
machine for $3000. Two months latter in March 1989,
Oechsner had a casual conversation with former employee
Scott Navin and told him about becoming ‘‘foreman’’ and
then told Navin:
the guys tried getting in a union in at E & L Plastics
but it didn’t seem to work, so the company was looking
for a way to get rid of them.
Navin was invited to and attended Oechsner’s wedding in
June. When asked questions relating to Navin’s testimony,
Oechsner repeatedly answered that he didn’t recall. LaJoice
confirms that Navin told him about the conversation with
Oechsner about a month after it occurred when they had a
chance meeting.4 Navin said he considered himself a
‘‘friend’’ of all the employees, including Oechsner, but only
saw them by chance after he stopped working at Respond-
ent’s facility.
Under these circumstances, I find Navin to be a com-
pletely independent and credible witness (who otherwise had
nothing to gain by his testimony) and I find that he accu-
rately testified that in March 1989, approximately 2 months
before the alleged discriminatees were fired, Oechsner told
him that some unnamed ‘‘guys’’ has tried to start a union
and that the ‘‘company’’ was ‘‘looking for a way to get rid
of them.’’
As noted, Esser made a strongly antiunion speech only a
few months before and I find that both Esser and Oechsner
(who was having perceived difficulties in his new super-
visory relationship with his former fellow employees), re-
tained an attitude of animus towards the three principal union
activists that persisted through March and into April and
May. I further find that this animus is sufficient to support
an inference that the past union activities of employees
LaJoice, Laut, and Zidek were a motivating factor in Re-
spondent’s subsequent decision to terminate them.
This conclusion is reenforced by the Respondent’s earlier
action in implementating and distributing its pension and
profit-sharing plan on January 9, shortly before Esser pre-
pared and presented his antiunion speech to the employees.
The obvious effect of Respondent’s language, which specifi-
cally denies profit sharing to ‘‘those who are members of a
collective-bargaining unit’’ and which was announced during
the midst of a union campaign, is to illegally discourage
union activity, see Fabric Warehouse, 294 NLRB 189
(1989).
Respondent, however, asserts that it made a mere ‘‘tech-
nical violation’’ of the Act which was ‘‘immediately’’ cor-
rected after it was so notified by the General Counsel, and
argues that the matter is de minimis and that the allegation
should be dismissed.
First, it is noted that the described provision went into ef-
fect during the height of a union campaign when the com-
pany president was contemporaneously obtaining legal advice
concerning his antiunion speech, and the offensive denial of
profit sharing to collective-bargaining unit members was
made at the same time Respondent emphatically was in-
structing employees about their ‘‘legal right’’ to withdraw
any union authorization cards they had signed. The employ-
ees were required to sign an acknowledgement that they re-
ceived this handbook in January 1989. However, the im-
proper language was not deleted until February 2, 1990, and
then only after the amended charge was filed. Secondly, I
find that the timing of the dissemination of the pension and
profit-sharing plan just before Esser’s antiunion speech dem-
onstrate a particularly flagrant (and, in this instance, effec-
tive), example of coercive interference in employees’ Section
7 rights under the Act. Accordingly, I find that the General
Counsel has independently shown that Respondent has vio-
lated Section 8(a)(1) of the Act in this respect, as alleged.
Under all these circumstances, I find that the General
Counsel has met his initial burden by presenting a prima
facie showing, sufficient to support an inference that the em-
ployees’ union activities were a motivating factor in Re-
spondent’s subsequent decision to terminate them. Accord-
ingly, the testimony will be discussed and the record evalu-
ated in keeping with the criteria set forth in Wright Line, 251
NLRB 1083 (1980), see NLRB v. Transportation Manage-
ment Corp., 462 U.S. 393 (1983), to consider Respondent’s
defense, and whether the General Counsel has carried his
overall burden.
Respondent’s defense in this regard is based on its conten-
tion that all three employees were discharged for perform-
ance deficiencies and poor work attitudes unrelated to union
or other protected activity.
I find no persuasive evidence to support Respondent’s de-
fense and I conclude that its alleged reasons are pretextual
and merely designed to mask the fact that each termination
was motivated by Supervisor Oechsner’s belief that Esser
wanted to get rid of any threat to possible renewed union ac-
tivity; by his own desire to purge the workplace of reminders
of his own changing role regarding the union organizational
attempt (reinforced by his apparent difficulties in effectively
exercising supervisory skills over his former fellow employ-
ees); and by Esser’s dislike for handling employee relations
matters, and his willingness to encourage or accept a solution
that would eliminate the threat of any renewed union activ-
ity.
Esser consistently demonstrated a dislike for any personal
involvement in his Company’s employee relations matters, a
dislike that is shown to be consistent with the General Coun-
sel’s contention that Respondent wanted to rid the company
of the three union organizers that had created irritating super-
visory problems. Esser was led to believe by reports from
Oechsner that these same employees were displaying ‘‘atti-
tude’’ problems. It is not necessary to determine that Esser
actually initiated the discussion to discharge the three inas-
much as he clearly endorsed Oechsner’s recommendation to
this end. It is clear that he made no meaningful, objective
investigation of Oechsner’s charges against these employees,
and did not make any attempt to resolve the so-called prob-
lems by seeking to come up with some less drastic solution
short of termination (except for a talk with Zidek). Accord-
1125E & L PLASTICS CORP.
ingly, and for the reasons further discussed below, I find that
LaJoice, Laut, and Zidek would not have been discharged
were it not for their involvement in the abortive union orga-
nization attempt and that the reasons advanced by Respond-
ent to rationalize each discharge are unfounded and
pretextual.
The three discriminatees were long-term employees who
had no history of poor work or attendance habits and no
record of past warnings or discipline, yet, in the several
months that followed the demise of the union organizational
attempt and the contemporaneous promotion of Oechsner to
be their supervisor, they were suddenly accused of numerous
faults including slow work, engaging in horseplay, and hav-
ing bad attitudes.
There is no indication that anyone had ever been fired for
horseplay by Respondent, even though it was a common oc-
currence in the plant. Oechsner admitted that he personally
had greased machine handles and was in water fights and
wrestled at work. Further, current supervisor, David
Checolinski, testified that when he was an employee, he and
Doug Duquaine, after ‘‘rough-housing’’ on worktime, got
into a fight observed by Oechsner (when he was a super-
visor), and they received no discipline. A discharge based on
common horseplay, occurring on a regular basis at an em-
ployer’s facility, which had not previously been cause for
even minor discipline, is not a valid defense, see Crossroads
Furniture, 301 NLRB 520 (1991), and I find that this as-
serted justification is merely pretextual.
Respondent attempted to support its allegations by calling
Supervisor Checolinski, who testified with general negative
comments about the slow and deficient work performance of
Laut, LaJoice, and Zidek. Checolinski was not a supervisor
at the time of his alleged observations and he never told any-
one in management about it until he told Respondent’s coun-
sel prior to the trial. Accordingly, his observations could not
have been part of the reason for the discharges. Otherwise,
it was shown that Oechsner also complained to Esser about
his friend Duquaine and his slowness and poor quality.
Duquaine was not disciplined and he, along with all the other
employees, including LaJoice, Laut, and Zidek got a pay in-
crease in May.
Although Esser said he believed Laut had been slow since
he was first hired in 1985, he had not been warned or dis-
ciplined. To the contrary, he was given additional duties in
the toolroom (duties which occasioned constant interruption
at his machine so he could issue tools to others). Then, he
was discharged because his production slowed.
Esser testified that he had documentation that would sup-
port his claim that the Company had thousands of dollars
worth of damaged or deficient parts that were rejected by its
customer because of alleged inspection failures by Zidek, yet
no corroborating evidence was produced. Otherwise, it ap-
pears to be inherently unbelievable that Respondent would
transfer Zidek in January from his skilled work adjusting and
running the computerized ‘‘CNC’’ machine (for which he
had been sent for special schooling), and then do nothing for
several months as he repeatedly failed to properly make in-
spections, without otherwise specifically and directly address-
ing the alleged problem.
Vice President Luther admitted that Zidek was one of the
better employees ‘‘for quite a time’’ and was one of the
highest paid, but he asserts that Zidek developed a ‘‘bad atti-
tude.’’ This type of self-serving declaration, as also at-
tempted by Esser and Oechsner, is neither objective, conclu-
sive, nor persuasive. Compare Eskaton Sunrise Community,
279 NLRB 68, 80 (1986). In addition to being self-serving,
Respondent’s several attacks against Laut, LaJoice, and
Zidek basically are merely selective or anecdotal, unsup-
ported by any ‘‘hard’’ or objective information, such as pro-
duction records.
With the exception of his one discussion with, Zidek,
Esser is not shown to have made any independent investiga-
tion of the alleged work performance problems or attitude
deficiencies relayed to him by Oechsner. In the latter case
the record shows that Zidek was called in April and told by
Esser that he was going to be let go, because he wasn’t
doing his job because he walked around the shop, talked to
people, interrupted their work, and had become a bad influ-
ence on everyone. Zidek was then given another chance to
‘‘do your work properly’’ and no written warning or other
discipline was issued. No evidence was persuaded to show
specifically what Zidek did after April that would justify his
discharge and, in fact, it appears that Respondent’s alleged
reason’s for Zidek’s termination shifted to problems with his
inspections that occurred prior to the April meeting with
Esser.
Under these circumstances, I find the Respondent’s stated
reasons regarding poor work performance are not supported
by credible evidence and otherwise are clearly pretextual.
Accordingly, I conclude that the Respondent has failed to
show that either Laut, LaJoice, or Zidek would have been
discharged absent their union activities. The General Counsel
otherwise has met its overall burden of proof and I further
conclude that Respondent’s discharge of these three employ-
ees is shown to have been in violation of Section 8(a)(1) and
(3) of the Act, as alleged.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By promulgating and maintaining a rule which excluded
members of a collective-bargaining unit from participating in
its pension and profit-sharing plan, Respondent has interfered
with, restrained, and coerced its employees in the exercise of
their rights guaranteed in Section 7 of the Act and thereby
has engaged in unfair practices in violation of Section 8(a)(1)
of the Act.
4. By discharging employees John Laut and Peter LaJoice
on June 22, 1989, and Steven Zidek on June 26, 1989, re-
spectively, Respondent engaged in unfair labor practices in
violation of Section 8(a)(1) and (3) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom an to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended that Respondent be ordered to reinstate each of
the three discriminatees to their former job or a substantially
1126 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the
effective date of the 1986 amendment to 26 U.S.C. § 6621), shall
be computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 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.’’
equivalent position, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to the a sum of money equal to that which they nor-
mally would have earned form the date of the discrimination
to the date of reinstatement, in accordance with the method
set forth in F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as computed in New Horizons for the Retarded,
283 NLRB 1173 (1989),5 and that Respondent remove from
its files any reference to the discharge, and notify them in
writing that this has been done and that evidence of this un-
lawful discipline will not be used as a basis for future per-
sonnel action against them.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, E & L Plastics Corp., its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Promulgating and maintaining a rule which excluded
members of a collective-bargaining unit from participating in
its pension and profit sharing plan.
(b) Discharging any employee for activity protected by
Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer John Laut, Peter LaJoice, and Steven Zidek im-
mediate and full reinstatement and make them whole for the
losses they incurred as a result of the discrimination against
them in the manner specified in the remedy section of this
decision.
(b) Remove from its files any reference to these discharges
and notify them in writing that this has been done and that
evidence of the unlawful discharge will not be used as a
basis for future personnel actions against them.
(c) Rescind, if it has not already done so, any rules which
exclude members of a bargaining unit from participating in
its benefit plans.
(d) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(e) Post at its Lannon, Wisconsin facility, copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director for Region 30, after
being signed by the Respondent’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
Respondent 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 Respondent has
taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT discharge any employee for engaging in ac-
tivities protected by Section 7 of the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL NOT promulgate and maintain any rule which ex-
cluded members of a collective-bargaining unit from partici-
pating in our pension and profit-sharing or other benefit
plans.
WE WILL offer John Laut, Peter LaJoice, and Steven Zidek
immediate and full reinstatement and make them whole for
the losses they incurred as a result of the discrimination
against them.
WE WILL remove from its files any reference to these dis-
charges and notify them in writing that this has been done
and that evidence of the unlawful discharge will not be used
as a basis for future personnel actions against them.
WE WILL rescind any rules which exclude members of a
collective-bargaining unit from participating in our pension
and profit-sharing or other benefit plans.
E & L PLASTICS CORP.