Electro-Voice, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1996

320 N.L.R.B. 1094 (N.L.R.B. 1996)

1094
320 NLRB No. 134
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
In agreeing with the judge that the Respondent violated Sec.
8(a)(1) by making statements to employees that their support for or
membership in the Union would be futile, we rely particularly on
Director of Manufacturing and Acting Plant Manager Jay Melton’s
statement that ‘‘this will not be a union shop.’’
We find it unnecessary to rely on (1) the judge’s finding that
‘‘[p]ersons union wise (former union representative) and plant wise
in their personal interviews with the employees would no doubt have
been able to detect union affection’’; (2) the small plant doctrine;
and (3) the Respondent’s recall of four employees in order to limit
backpay liability, as supporting the General Counsel’s prima facie
case of discrimination in violation of Sec. 8(a)(3). In addition, we
find it unnecessary to pass on the judge’s finding that Kathy Nash
is a supervisor within the meaning of Sec. 2(11) of the Act.
2 The Respondent has requested oral argument. The request is de-
nied as the record, exceptions, and briefs adequately present the
issues and positions of the parties.
The Respondent argues that the Board should find, consistent with
the denial by the U.S. District Court for the Northern District of In-
diana of the General Counsel’s petition for 10(j) injunctive relief,
that the Respondent did not engage in unlawful conduct. We note,
however, that a district court’s determination in a case involving a
10(j) application for a preliminary injunction is not binding on the
Board. See, e.g., A.P.R.A. Fuel Oil, 309 NLRB 480 fn. 7 (1992).
3 The judge correctly set forth this testimony in discussing
Dermody’s discharge. He, however, in sec. IV,A, entitled ‘‘Impres-
sions of Surveillance’’ inadvertently misstated the testimony and, ap-
parently, based his decision on the misquoted evidence.
Electro-Voice, Inc. and International Union of Elec-
tronic, Electrical, Salaried, Machine and Fur-
niture Workers, AFL–CIO. Case 25–CA–23319
March 29, 1996
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On June 5, 1995, Administrative Law Judge Lowell
M. Goerlich issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed limited exceptions, a sup-
porting brief, and a brief in support of the judge’s de-
cision.
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,1 and con-
clusions as modified here and to adopt the rec-
ommended Order as modified and set forth in full
below.2
1. The judge dismissed the complaint allegation that
the Respondent violated Section 8(a)(1) of the Act by
creating an impression of surveillance. We disagree.
Employee Tracy Dermody testified that in the begin-
ning of July, she met individually with the Respond-
ent’s director of manufacturing, Jay Melton, who told
her that her complaints about tools, fans, and ventila-
tion would be favorably considered. When she returned
to her work station, Dermody had the following con-
versation with the Respondent’s general foreman, Paul
Grasso:
I asked him [Grasso] . . . why is everyone so in-
terested in our complaints now? And he goes,
‘‘Well, it’s not what you think. [Human Re-
sources Manager] Minnie [Warren] was down
here before your meeting.’’3 And I go, ‘‘What
meeting?’’ And he said, ‘‘I’m not stupid,’’ and
walked away.
In determining whether an employer has created an
impression of surveillance, the test applied by the
Board is whether employees would reasonably assume
from the statement in question that their union activi-
ties had been placed under surveillance. See, e.g., 7-
Eleven Food Store, 257 NLRB 108, 116 (1981). Em-
ployees should be free to participate in union organiz-
ing campaigns without fear that members of manage-
ment are peering over their shoulders, taking note of
who is involved in union activities, and in what par-
ticular ways. Flexsteel Industries, 311 NLRB 257
(1993). An employer creates an impression of surveil-
lance by indicating that it is closely monitoring the de-
gree of an employee’s union involvement. See Emer-
son Electric Co., 287 NLRB 1065 (1988).
In this case, Grasso’s use of ‘‘your meeting,’’ as op-
posed to ‘‘the meeting’’ or ‘‘our meeting,’’ strongly
indicates that he was specifically excluding himself
and other management officials from the meeting to
which he referred. By excluding himself and other
management officials, Grasso implied that it was sim-
ply a meeting of employees, and the only employees-
only meetings known to have taken place at that time
were the Union’s organizational meetings. It is undis-
puted that these meetings were held away from the Re-
spondent’s premises at Reggio’s and the Ramada Inn
and that employees were not openly engaging in pro-
tected concerted activities at the Respondent’s facility.
In addition, Grasso’s further sarcastic comment, ‘‘I’m
not stupid,’’ in answer to Dermody’s question regard-
ing what meeting he was talking about, would reason-
ably tend to indicate that Grasso was referring to an
employee union meeting, and that he was taking an in-
terest in the occurrence of such meetings.
In light of these circumstances, we conclude that
Grasso’s reference to ‘‘your meeting,’’ as well as his
additional comments, would reasonably lead Dermody
to believe that her protected concerted activity was
1095ELECTRO-VOICE, INC.
4 The Respondent contends that the General Counsel has not estab-
lished a prima facie case because he has not proven that each indi-
vidual discriminatee was a union supporter or that the Respondent
was aware of each individual’s union support. We find no merit in
this contention. The General Counsel need not establish that the Re-
spondent had knowledge of each discriminatee’s particular union ac-
tivity. It is well settled that unlawful motivation may be established
when, as here, an employer takes adverse action against a group of
employees, regardless of their individual sentiments toward union
representation, in order to punish the employees as a group ‘‘to dis-
courage union activity or in retaliation for the protected activity of
some.’’ ACTIV Industries, 277 NLRB 356 fn. 3 (1985); Davis Su-
permarkets, 306 NLRB 426 (1992), enfd. 2 F.3d 1162 (D.C. Cir.
1993); Rainbow News 12, 316 NLRB 52, 67 (1995).
5 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
6 Ultimately, 22 unit employees signed authorization cards.
under surveillance, and this would tend to discourage
such activity.
2. The judge concluded, and we agree, that the dis-
charges of David E. Shaffer, Pamela J. Buford, Sherrie
Elaine Mize, Jason Allen Havens, December Ellen
Barrows, Scott Kendall, Tracy Marie Bentley, Michelle
Jo Kinces, and Tracy Jean Dermody violated Section
8(a)(3).4 In so concluding, the judge found, inter alia,
that the attendance policy had never before been ad-
ministered to effect the discharge of an employee for
excessive absenteeism when the employee had fewer
than 13 points, nor had the policy ever been used as
a show of force in order to bolster attendance. The
judge found that the discharges were part of the Re-
spondent’s overall scheme to thwart its employees’
unionization efforts and that the Respondent’s claim
that the mass discharge would improve productivity
was pretextual. For all the reasons relied on by the
judge, we conclude that the Respondent’s alteration of
its absenteeism policy on July 7, 1994, to discharge
employees with fewer than 13 points, similarly vio-
lated Section 8(a)(3). Furthermore, because the Re-
spondent unilaterally changed the absenteeism policy
at a time when it was obligated to bargain with the
Union, this change also violated Section 8(a)(5).
3. The Respondent has excepted to the judge’s im-
position of a Gissel5 bargaining order. It asserts that
the judge failed to justify imposing such an extraor-
dinary remedy by demonstrating that the traditional
remedies available to the Board would not ensure that
a fair election could be held. We find no merit in the
Respondent’s arguments.
The record shows that on June 22, 1994, during an
organizational meeting, 21 of the 28 unit employees
designated the Union as their collective-bargaining rep-
resentative by signing authorization cards.6 The Re-
spondent does not dispute the validity of these cards.
Accordingly, we find that as of June 22, the Union
represented a majority of the unit employees. On July
7, the Union requested that the Respondent recognize
and bargain with it. The Respondent failed to do so
and, later that day, the Union filed a representation pe-
tition in the Board’s Regional Office.
In agreeing with the judge that a Gissel bargaining
order is a necessary component of the remedy in this
case, we find that the Respondent’s conduct clearly
demonstrates that holding a fair election in the future
would be unlikely. In this regard, we note that the Re-
spondent’s misconduct included the discharge of ap-
proximately one-third of the bargaining unit on July 7
immediately after the Union demanded recognition and
filed the representation petition, threats of plant closure
by the Respondent’s director of manufacturing and act-
ing plant manager, Jay Melton, interrogations by
Melton and Human Resources Manager Minnie War-
ren, solicitation of grievances and complaints, and pro-
viding benefits to discourage union activity. The en-
during coercive effect of the Respondent’s misconduct,
considered as a whole, cannot be denied.
Within hours of the Union’s demand for recognition,
the Respondent discriminatorily altered its attendance
policy and then used that policy to discharge one-third
of the unit employees, all of whom had signed union
authorization cards. Such action can only serve to rein-
force the employees’ fear that they would lose employ-
ment if they persisted in union activity. Koons Ford of
Annapolis, 282 NLRB 506, 508 (1986), enfd. 833 F.2d
310 (4th Cir. 1987). The impact of this action was
magnified by the fact that it occurred on the same day
that the Union demanded recognition. See Astro Print-
ing Services, 300 NLRB 1028, 1029 (1990).
With this swift, mass discharge, the Respondent sent
its employees the unequivocal message that, even
though high levels of absenteeism among its work
force had caused disruption to its operations, the Re-
spondent nevertheless preferred to operate without one-
third of that experienced work force and with inexperi-
enced temporary personnel instead, in order to extin-
guish the union organizational effort. That message
will have a lasting effect on the unit employees’ exer-
cise of their rights to organize. Discharging approxi-
mately one-third of the bargaining unit is unlawful
conduct that ‘‘goes to the very heart of the Act’’ and
is not likely to be forgotten. NLRB v. Entwistle Mfg.
Co., 120 F.2d 532, 536 (4th Cir. 1941).
Further, Jay Melton made threats of plant closure to
amassed groups of employees. We have long held that
threats of plant closure and other types of job loss are
more likely than other types of unfair labor practices
to affect the election conditions negatively for an ex-
tended period of time. Garney Morris, Inc., 313 NLRB
101, 103 (1993), enfd. 47 F.3d 1141 (3d Cir. 1995).
Such threats serve as an insidious reminder to employ-
ees every time they come to work that any effort on
their part to improve their working conditions may be
met with complete destruction of their livelihood. We
also note that Minnie Warren’s and Jay Melton’s indi-
1096 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Because of the serious nature of the violations and because the
Respondent’s egregious misconduct demonstrates a general disregard
for the employees’ fundamental rights, we find it necessary to issue
a broad order requiring the Respondent to cease and desist from in-
fringing in any other manner on rights guaranteed employees by Sec.
7 of the Act, Hickmott Foods, 242 NLRB 1357 (1979). We shall fur-
ther amend the judge’s recommended Order and notice to remedy all
of the unfair labor practices found herein.
vidual meetings with the unit employees, which in-
volved unlawful solicitations of grievances, promises
of improved terms and conditions of employment, and
interrogations, occurred at the same time as the
Union’s fledgling organizational efforts.
By improving the employees’ working conditions,
the Respondent committed another highly coercive and
enduring unfair labor practice that directly affected a
substantial portion of the unit employees. After the Re-
spondent’s successful 2-week crusade to quell the em-
ployees’ organizational efforts, the Respondent made
improvements in working conditions, including install-
ing additional fans and making bathroom and break-
room repairs. Although the Respondent was aware of
the need for these improvements long before the union
organizing began, it delayed addressing these needs
until after the union activity ceased. The Supreme
Court has long recognized that employees are quick to
perceive the ‘‘fist inside the velvet glove’’ implicit in
such tactics. NLRB v. Exchange Parts Co., 375 U.S.
405, 409 (1964). And the Board has noted that unlaw-
fully granted benefits ‘‘are particularly lasting in their
effect on employees and difficult to remedy by tradi-
tional means . . . not only because of their signifi-
cance to the employees, but also because the Board’s
traditional remedies do not require the Respondent to
withdraw the benefits from the employees.’’ Triec,
Inc., 300 NLRB 743, 751 (1990), enfd. 946 F.2d 895
(6th Cir. 1991).
The severity of the Respondent’s misconduct is fur-
ther compounded by the involvement of high-ranking
corporate officials in the commission of virtually all
the unfair labor practices in this case. Specifically, Ron
Graham, vice president for human resources, decided
to change the attendance policy on July 7 and to dis-
charge one-third of the bargaining unit according to
that policy. Jay Melton, director of manufacturing re-
sponsible for all four of the Respondent’s plants, and
Minnie Warren, human resources manager based at the
Respondent’s Buchanan, Michigan location, made
threats of plant closure and job loss, and personally in-
terrogated unit employees. When the antiunion mes-
sage is so clearly communicated by the words and
deeds of the highest levels of management, it is highly
coercive and unlikely to be forgotten. See America’s
Best Quality Coatings Corp., 313 NLRB 470, 472
(1993), enfd. 44 F.3d 516 (7th Cir.), cert. denied 115
S.Ct. 2609 (1995).
The Respondent asserts that its course of misconduct
occurred only during a limited, 2-week period and that,
in light of its 46-year ‘‘excellent’’ relationship with the
Union at three other locations, holding a fair election
is not unlikely. On the contrary, we find that the Re-
spondent’s actions were swift, strong, pervasive, and
effective. That the Respondent’s unlawful actions were
highly concentrated into a 2-week period only en-
hanced their severity and lasting impact on employees’
free choice.
As soon as the Respondent became aware that some
employees had an interest in unionization, Warren ar-
rived at the plant and began interrogating employees,
soliciting grievances, and promising improvements.
Immediately on being dispatched to serve as acting
plant manager, Melton turned the Respondent’s
antiunion campaign up a notch by threatening plant
closure/job loss at employee meetings, followed up
with coercive one-on-one interviews with unit employ-
ees. Finally, when the Union requested recognition and
filed an election petition, the Respondent’s antiunion
efforts culminated in the mass discharge discussed
above. By this well-orchestrated, intensive, 2-week
course of conduct, the Respondent effectively killed
off the Union’s organizational campaign and pro-
claimed to the employees that self-organization would
not be tolerated.
In light of all these circumstances, we conclude that
the possibility of erasing the effects of the Respond-
ent’s unfair labor practices is slight and that holding a
fair election is unlikely. Accordingly, we agree with
the judge that a Gissel bargaining order is warranted.7
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and set forth in full below and orders that the
Respondent, Electro-Voice, Inc., Mishawaka, Indiana,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to recognize and bargain collectively
with International Union of Electronic, Electrical, Sala-
ried, Machine and Furniture Workers, AFL–CIO, with
respect to rates of pay, wages, hours of employment,
and other terms and conditions of employment in the
following appropriate unit:
All production and maintenance workers, includ-
ing maintenance and lead persons at the Respond-
ent’s facility in Mishawaka, Indiana; BUT EX-
CLUDING office clerical employees, professional
employees, guards and supervisors as defined in
the Act.
(b) Unilaterally changing the attendance policy,
without first notifying and bargaining with the Union
to impasse or agreement.
1097ELECTRO-VOICE, INC.
8 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.’’
(c) Changing the attendance policy in order to dis-
charge any employee for engaging in union or other
protected concerted activities, or to discourage any em-
ployee from engaging in such union or other protected
concerted activities.
(d) Discharging or otherwise discriminating against
any employee for supporting or joining the Union, or
any other labor organization.
(e) Threatening any employee that, if the Union
comes in, it will close the Mishawaka plant.
(f) Threatening any employee that, if the Union
comes in, it will remove work from the Mishawaka
plant.
(g) Coercively interrogating any employee about
union support or union activities.
(h) Soliciting grievances from any employee and ex-
plicitly or implicitly promising to remedy or adjust
them.
(i) Providing any employee with benefits in order to
discourage union activities.
(j) Telling any employee that supporting the Union
will be futile.
(k) Creating the impression that any employee’s
union activities are under surveillance.
(l) In any other 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) Recognize and, on request, bargain collectively
with the Union as the exclusive collective-bargaining
representative of its employees in the appropriate unit,
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an agree-
ment is reached, embody it in a signed agreement.
(b) Rescind and cease giving effect to the attendance
policy to the extent that it was changed to permit dis-
charges for fewer than 13 points.
(c) Offer David E. Shaffer, Pamela J. Buford,
Sherrie Elaine Mize, Jason Allen Havens, December
Ellen Barrows, Scott Kendall, Tracy Marie Bentley,
Michelle Jo Kinces, and Tracy Jean Dermody imme-
diate 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 previously enjoyed, and make
them whole for any loss of earnings and other benefits
suffered as a result of the discrimination against them,
in the manner set forth in the remedy section of the
decision.
(d) Remove from its files any reference to the un-
lawful discharges and notify each of the employees in
writing that this has been done and that the discharges
will not be used against them in any way.
(e) 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 all other
records necessary to analyze the amounts due under
the terms of this Order.
(f) Post at its facility in Mishawaka, Indiana, copies
of the attached notice marked ‘‘Appendix.’’8 Copies of
the notice, on forms provided by the Regional Director
for Region 25, after being signed by the Respondent’s
authorized 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.
(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent 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 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 recognize and bargain col-
lectively with International Union of Electronic, Elec-
trical, Salaried, Machine and Furniture Workers, AFL–
CIO, with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employ-
ment in the following appropriate unit:
All production and maintenance workers, includ-
ing maintenance and lead persons at our facility
in Mishawaka, Indiana; BUT EXCLUDING office
clerical employees, professional employees,
guards and supervisors as defined in the Act.
1098 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT unilaterally change the attendance
policy, without first notifying and bargaining with the
Union to impasse or agreement.
WE WILL NOT change the attendance policy in order
to discharge our employees for engaging in union or
other protected concerted activities, or to discourage
our employees from engaging in such union or other
protected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against you because of your support for or membership
in the Union, or any other labor organization.
WE WILL NOT threaten you that, if the Union comes
in, we will close our Mishawaka plant.
WE WILL NOT threaten to remove work from the
Mishawaka plant if the Union comes in.
WE WILL NOT coercively interrogate our employees
about their union activities.
WE WILL NOT solicit grievances from our employees
and explicitly or implicitly promise to remedy or ad-
just them.
WE WILL NOT provide our employees with benefits
for the purpose of discouraging union activities.
WE WILL NOT tell our employees that supporting the
Union would be futile.
WE WILL NOT create the impression that our em-
ployees’ union activities are under our surveillance.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain collec-
tively with the Union as the exclusive collective-bar-
gaining representative of our employees in the appro-
priate unit, with respect to rates of pay, wages, hours,
and other terms and conditions of employment and, if
an agreement is reached, embody it in a signed agree-
ment.
WE WILL rescind and cease giving effect to the at-
tendance policy to the extent that it was changed to
permit discharges for fewer than 13 points.
WE WILL offer David E. Shaffer, Pamela J. Buford,
Sherrie Elaine Mize, Jason Allen Havens, December
Ellen Barrows, Scott Kendall, Tracy Marie Bentley,
Michelle Jo Kinces, and Tracy Jean Dermody imme-
diate 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 previously enjoyed, and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharges, less any
net interim earnings, plus interest.
WE WILL notify each of them in writing that we
have removed from our files any reference to their dis-
charges and that the discharges will not be used
against them in any way.
ELECTRO-VOICE, INC.
Walter Steele, Esq., for the General Counsel.
Thomas J. Barnes and James R. Stadler, Esqs., of Grand
Rapids, Michigan, for the Respondent.
Al Warzecha, of Fort Wayne, Indiana, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
LOWELL GOERLICH, Administrative Law Judge. The origi-
nal charge filed in this proceeding on July 8, 1994, in Case
25–CA–23319 by International Union of Electronic, Elec-
trical, Salaried, Machine and Furniture Workers, AFL–CIO
(the Union) was served on Electro-Voice, Inc. (the Respond-
ent) on July 8, 1994. The first amended charge filed by the
Union on July 19, 1994, was served on Respondent on July
20, 1994. The second amended charge filed by the Union on
August 30, 1994, was served on the Respondent August 31,
1994. A complaint and notice of hearing was issued October
18, 1994. The complaint, among other things, alleges that the
Respondent committed certain 8(a)(1) violations and dis-
charged employees in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act).
The Respondent filed a timely answer denying that it had
engaged in the unfair labor practices alleged.
The complaint came on for hearing at South Bend, Indi-
ana, on December 19–22, 1994, and January 17–19, 1995.
Each party was afforded a full opportunity to argue orally on
the record, to submit proposed findings of fact and conclu-
sions, and to file briefs. All briefs have been carefully con-
sidered.
FINDINGS OF FACT, CONCLUSIONS, AND REASONS
THEREFOR
I. THE BUSINESS OF THE RESPONDENT
At all times material Respondent, a corporation with an of-
fice and place of business in Mishawaka, Indiana (Respond-
ent’s facility), has been engaged in the manufacture and sale
of audio equipment.
During the 12-month period ending July 1, 1994, Re-
spondent, in conducting its business operations described
above, sold and shipped from its Mishawaka, Indiana facility
goods and materials valued in excess of $50,000 directly to
points outside the State of Indiana.
During the 12-month period ending July 1, 1994, Re-
spondent, in conducting its business operations described
above, purchased and received at its Mishawaka, Indiana fa-
cility goods valued in excess of $50,000 directly from out-
side the State of Indiana.
At all material times Respondent has been engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
1099ELECTRO-VOICE, INC.
1 In late July 1994, Grasso was promoted from general foreman of
the military cable and crossover lines to plant manager of the entire
Mishawaka plant.
2 One of the ‘‘girls’’ was ‘‘like, one minute late and she got a half
point for it.’’
3 The ‘‘girlfriend’’ was Buford.
II. THE LABOR ORGANIZATION INVOLVED
At all material times the Union has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The Respondent is a wholly owned subsidiary of Mark IV
Audio, Inc. Respondent has manufacturing facilities in Bu-
chanan, Michigan; Mishawaka, Indiana; and Severville and
Newport, Tennessee. The Mishawaka plant manufactures fi-
berglass stadium horns, electronic crossover panels, and ca-
bles for military headsets. Respondent purchased the
Mishawaka plant in 1986. The smaller speakers, personal
sound equipment, and parts for helicopters are assembled in
the ‘‘back room’’ where most of the female employees were
employed.
Ronald M. Graham, employed by Mark IV Audio, is its
vice president of administration (vice president of human re-
sources) in charge of all nonfinancial matters for the Mark
IV Audio, Inc. that includes Electro-Voice in Mishawaka, In-
diana. His office is at Buchanan, Michigan, about 25 miles
from Mishawaka. He has ‘‘world-wide responsibility’’ for 15
companies and 13 manufacturing facilities. Mark IV Audio
is ‘‘about a two billion dollar company.’’
Minnie Warren in 1992 became the human resources man-
ager with primary responsibility for the human resource
functions at the Buchanan plant and oversight responsibility
for the human resource functions at the Mishawaka plant.
Her office is located at Buchanan. Jay Melton is the director
of manufacturing for Electro-Voice covering four plants in-
cluding Mishawaka. At one time Melton had been a rep-
resentative of the Union. His office is located in Severville,
Tennessee. Paul Grasso is the general foreman of the
Mishawaka plant.1 Graham, Warren, Melton, and Grasso are
alleged to have participated in the unfair labor practices al-
leged. Until June 27, 1994, Dennis Northam was the man-
ager at the Mishawaka plant.
Warren reports directly to Graham. The human resources
managers in Tennessee and Oklahoma City report directly to
Graham. Warren is the only person in the Mishawaka plant
who reports directly to Graham. Warren ‘‘interfaces di-
rectly’’ with the Mishawaka plant manager.
Northam was ‘‘responsible for the day-to-day operations
of the plant, productivity, the overall management of the
plant,’’ and had the authority to discharge employees.
Northam reported to Melton. Since Graham has been vice
president, he has never been involved in the discharge of an
hourly employee.
Dennis Northam was not favored by the employees. The
employees had many complaints. One involved the no-fault
absenteeism system. Employees objected to the system be-
cause of the alleged harsh way it was administered by
Northam.
In January 1994 an employee, Pamela J. Buford, phoned
Warren who put Melton on the line. Buford complained
about Northam. She told them that the point system (absen-
tee policy) was unfair, that the employees ‘‘did not have the
right tools to work,’’ and that there was no hot water in the
bathroom. According to Buford, thereafter in March or April,
Northam and Grasso met with about 12 or 13 employees in
the lunchroom. Northam told them that ‘‘Buchanan had re-
ceived a phone call and that someone was complaining and
they didn’t like it and they wanted it stopped. And that the
point system was not going to change, that it had always
been that way and it was going to stay that way.’’
Conditions that had aggravated the employees did not im-
prove. In early May 1994 the employees began discussing
the Union. Buford was the first advocate. She talked to al-
most all the employees. The union thrust was prompted by
the way the Respondent treated its employees.2
Buford contacted the Union around June 15, 1994. A
meeting of employees with a union representative was set up
for June 17, 1994, at Riggio’s, ‘‘a restaurant right down the
road from Electro-Voice,’’ two or three blocks. Sixteen em-
ployees attended and signed an attendance sheet. At the time
there were 29 employees including Kathy Nash in the appro-
priate unit.
According to Warren, some time prior to June 22, 1994,
she had received a phone call from a ‘‘gentleman’’ who did
not give his name. He threatened to see an attorney concern-
ing no hot water in the bathroom, lack of fans, and a
‘‘girlfriend’’ who had a son who was undergoing knee sur-
gery and could not obtain leave.3 Prior to this call Warren
had received information that there were ‘‘drug dealings’’ at
Mishawaka. She took this matter up with Northam. Northam
said it was a ‘‘disgruntled employee.’’ Warren reported the
matters to Graham.
According to Warren, Graham related to her that while
playing golf with employee Scott Ressler, a son of a former
Buchanan manager, Graham had asked about the drug prob-
lem. Ressler said he did not believe it was ‘‘currently occur-
ring,’’ but there were ‘‘some problems he had heard about
. . . because of the kind of hiring that Dennis Northam had
been doing.’’ According to Warren, Graham told her Ressler
had told him about union rumors. Graham fixed this con-
versation with Ressler around June 14, 1994.
According to Graham he played golf again with Ressler on
June 21, 1994. Ressler said, ‘‘Ron, can I talk to you about
the Mishawaka plant?’’ Whereupon Ressler ‘‘unload[ed]’’ on
Graham for about 30 minutes about the problems with the
Mishawaka plant. Northam was highly criticized. According
to Ressler ‘‘there were individuals in the plant who treated
our attendance policy as a joke.’’ On the next morning, June
22, 1994, Graham briefed Warren and sent her to Mishawaka
‘‘to interview every employee. And I want you to find out
what is going on down there with Dennis. And I’ll tell you
now, that if we verify that this in fact is the way that Dennis
is operating, then I am going to recommend his discharge.’’
Warren went to Mishawaka on June 22, 1994.
Likewise on June 22, 1994, the employees again met in
a union meeting at the Ramada Inn. Alvin A. Warzecha, a
union director of organizing, attended the meeting. He asked
the attendees whether they ‘‘were ready to organize, or if
they wanted more time to ponder the situation.’’ They re-
sponded that they were ready. Twenty-one attendees signed
union authorizations.
1100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Roger Gaines was the vice president for manufacturing for Mark
IV Audio, Inc. He was Melton’s immediate supervisor.
5 Bentley testified Melton said, ‘‘[T]here will be no union in the
shop.’’
On June 22, 1994, as instructed by Graham, Warren jour-
neyed to Mishawaka and met with employees in a group.
According to Warren she ‘‘talked to them about the phone
calls and [she] told them that I would be meeting with them
individually to find out what their concerns were.’’ She also
said there would be drug testing and that things would be
different. Michelle Jo Kincses remembered Warren saying,
‘‘To find out what our complaints were, if we had any prob-
lems, personal problems, to see what she could do to make
the plant better for us.’’ Employee December Ellen Barrows
remembered Warren said, ‘‘[I]f [one] had problems, that she
would like us to come to her, and they would try to work
with us [and get] things done.’’ Barrows also remembered
that she had received ‘‘a couple of telephone calls complain-
ing about conditions at Mishawaka,’’ and that the person had
complained about ‘‘no hot water in the bathrooms, no fans,
and an attendance system that wasn’t fair.’’
On June 23, Warren, as instructed by Graham, commenced
individual interviews with all the employees. According to
Warren although she had heard from Graham that there were
union rumors, the Union was not mentioned by her during
the interviews. The purpose of the interviews was to find out
what the employees’ problems were. After 28 or 29 inter-
views Warren reported to Graham that the problem was
Northam and recommended that he be discharged.
Employees testified as to their conversations with Warren.
When Jason Allen Havens met with Warren she asked him
if he had any complaints. He told her the morning break was
‘‘kind of short.’’
When Buford met with Warren in the manager’s office she
asked her what things were wrong. Buford mentioned the
plant manager, the condition of the tools, and the point sys-
tem. Warren said she was looking over the point system pol-
icy and trying to make it better. Warren said that they were
going to get fans, were looking into the bathroom situation,
and they would get proper tools.
When employee Sherrie Elaine Mize met with Warren,
Warren said that ‘‘they were trying to get everybody’s com-
plaints about what they were unhappy with, with the plant,
or what we felt needed to be changed.’’ Warren asked Mize
whether she had any complaints. Mize mentioned the lack of
fans. ‘‘She said that her and Jay would get together and they
would see what changes they could make towards making it
better.’’
When December Ellen Barrows met with Warren in
Northam’s old office, Warren said if they had any problems
to tell them to her. Barrows mentioned a raise, the fans, the
tools, and the breakroom. The breakroom was too small. She
also complained about the point system. ‘‘She said that she
wanted to try to help us get things done, and then she started
putting the union down.’’ ‘‘That she had been in the union;
the union could not do anything for us.’’ Warren said that
‘‘she was doing something toward the point system.’’
When Scott Kendall met with Warren in the manager’s of-
fice, Warren asked him what he ‘‘might’’ need. He replied
that he would like to get out of the grinding room and they
needed more fans. Warren said they were getting more fans.
Kendall also testified that she said, that ‘‘she didn’t believe
there [were] enough people to support a union.’’
When Tracy Marie Bentley met with Warren, Warren
asked her also concerning plant problems. When Tracy Jean
Dermody met with Warren, Warren asked her if she had any
complaints, Dermody replied fans and the point system. Hot
water and the breakroom where mentioned. Warren said that
‘‘she was going to look into that.’’
When Michelle Jo Kincses met with Warren. Warren
asked her if she had any complaints. Kincses said fans and
hot water were needed and talked to Warren about the point
system and wages. Warren said that ‘‘she thought she was
going to revise the point system.’’
On June 23, 1994, according to Graham, Warren reported
on her interviews. Graham testified, ‘‘[S]he related to me in
general terms, the kind of things that were coming out of her
conversations with the employees. . . . there were real con-
cerns . . . about the attendance policy. . . . she did relate
to me some incidents, for example, where Dennis Northam
had charged someone a point for being like ten seconds late
in the morning.’’ Warren confirmed the kind of things that
Scott Ressler had told Graham about Northam’s behavior.
When Warren returned to the plant Graham told her that
he wanted to be ‘‘in a position to make a decision about
[him] Northam . . . to Roger Gaines,4 by the end of the day
on Friday, [June] 24th.’’ Warren returned about 4 o’clock
and after about a ‘‘30 minute or so conversation,’’ Graham
and Warren went to Roger Gaines’ office. Graham said,
‘‘Roger, we recommend that we release Dennis Northam
right away, and that we get the appropriate resources in here,
and get this operation going in the right direction.’’ Gaines
called Melton in Tennessee and told him to be in the
Mishawaka plant on Monday. ‘‘He was to take care of the
termination of Dennis Northam. . . . he was to free his
schedule so that he could stay and manage the plant for a
reasonable period of time, until we [could get] it straightened
out.’’ Melton appeared in Mishawaka, discharged Northam,
and called a meeting of the employees on June 27, 1994,
‘‘up front.’’ He advised the employees that Northam was no
longer with the Company. According to employee Kincses,
among other things Melton said, ‘‘[R]est assured, this will
not be a union shop.’’ Melton said that he would be taking
the place of Northam and would be interviewing the employ-
ees personally. ‘‘[H]e wanted to find out our complaints and
what could be better, what he could do to make the plant
better.’’ Melton also said that the Mishawaka work would go
to the plant in Austin, Texas, which had a fiberglass shop,
‘‘if a union came in.’’ Employees raised the matter of points
and fans. Melton said fans had been ordered and the point
system was being revised. He also said the Respondent
would be getting new tools.
Employee Mize, who attended the meeting, remembered
that Melton introduced himself and said he wanted to hear
the employees’ complaints. He said that ‘‘there would not be
a union or the plant would shut down.’’ Complaints reg-
istered were that the bathroom stalls were too small, the
bathroom had no hot water, the breakroom was too small, the
ventilation for the soldering was not proper, tools were not
adequate, and the point system was unfair. Barrows, Kendall,
Bentley,5 Dermody, Shaffer, and Vore, who attended the
meeting, all testified that Melton said the plant would close
if the Union comes in or words to that effect. There would
1101ELECTRO-VOICE, INC.
6 On July 14, 1994, Barrows gave an affidavit ‘‘Jay [Melton] said,
the first thing out of his mouth, that there will be no union in that
shop, and he repeated this two or three times during his speech. . . .
the plant would close down first.’’
7 Testimony of Dermody.
8 Melton had discussed with Roger Gaines, his boss, what he
would cover in his speech.
9 Melton testified that he referred to the Union in his remarks ‘‘be-
cause of the rumor in the plant. We’ve had rumors for years and
competition can be affected in many ways, including a union. I’ve
seen it happen in plants where you can drive work out because of
the raise in prices and Mishawaka has a very fine line in competitive
products back there and my concern was anything that might it
would—would be an issue.’’ (Emphasis added.)
10 Grasso’s affidavit reveals, ‘‘I was in attendance at the meeting
on June 29th. Jay Melton stated that there was no need for a union
at the Mishawaka facility.’’
11 Melton testified that ‘‘Northam’s conduct was such that it would
cause employees to want to join [the] union.’’
12 The Respondent, from the standpoint of the employees, modified
the absenteeism policy for the better on June 30, 1994.
never be a union in the shop.6 Employee Dermody remem-
bered that Melton said that ‘‘there will be no union here in
the shop. . . . he started in the lowest job and worked him-
self up. And he was part of the union at one time and the
union didn’t do anything for him . . . the union can’t protect
your job, the union can’t give us more money . . . he is
there and to get things back to normal, that he hears our
complaints.’’ Dermody also remembered Melton said, ‘‘Do
not give up your right to independent thinking. You have the
right to make up your own mind. Don’t let somebody else
do it for you.’’
Linda Marie Vore, an employee who was not discharged
but is still working for the Respondent, also attended the
Melton meeting and testified. Her testimony was particularly
trustworthy. ‘‘[H]e [Melton] talked about how he knew there
were problems and they were going to try to do things about
it . . . he said . . . there will not be a union.’’ Vore remem-
bered the words ‘‘if the Union came in the plant, or words
to this effect, that the plant would be closed’’ but was unable
to attribute them to any person.
Melton, Warren, and several other Respondent employee
witnesses testified in contradiction of the above-related testi-
mony. Their testimony is not credited.
About a week later, on June 29, 1994, Melton met again
with the employees. Appearing with him was Anthony Gale
Sawyer, director of quality, Mark IV Audio, who discussed
the care program and showed a video. Employee Mize testi-
fied, ‘‘He [Melton] did bring up about the union again, stat-
ing that there would not be a union or they’d shut the plant
down. And then, you know, if we’d go to them with our
complaints, then they would see what they could do . . .
they could move our work up to Buchanan.’’ Kendall re-
membered someone said, ‘‘[T]hey could do what a union
could do, and they didn’t need a union.’’
Employer complaints were also solicited. Melton said,
‘‘He was looking into it, he was comparing our plant to the
Tennessee plant and what he has done down there and what
he would like to do up here.’’7
Melton admitted that he mentioned the Union at the June
29 meeting, ‘‘I’d heard that there were rumors via the Frank
[Simon’s] conversation. . . . there was no need for a union
in Mishawaka . . . my experience in a union, they can’t do
anything for you, that only the company can give you
things.’’8 Melton made clear that the Respondent would
‘‘prefer that the plant be a non-union plant.’’
Melton was asked, ‘‘Was there any particular issue or
problems or concerns that was raised that you promised on
the spot to take care of?’’ Melton answered, ‘‘Fans, in par-
ticular.’’ Melton also testified that he told employees that the
plant was purchased for the ‘‘fiberglass.’’ The backroom
came into being because of a very price sensitive margin
‘‘cable was one of the first things that came into that plant
. . . in fact, because of competitiveness and either you go
off shore type vendors or this type thing because we con-
stantly do make buy decisions and Mishawaka came about.’’
‘‘Cable was becoming a prohibitive item in getting contracts,
government contracts. Anything you can take out of the price
of a product. And that’s where Mishawaka fit.’’ Melton also
testified, ‘‘I did go through and cover the rumors of the or-
ganizing attempt.9 I went right down my list that there is no
need for a union10 in there because of the problems we had
in the plant; you wouldn’t have had them if Mr. Northam
had been doing his job.’’11
Melton testified that Mishawaka cable work came out of
the Severville plant. ‘‘Cable became a problem in the arena
of competitiveness. It was offered to our Buchanan facility
at a special low rate. The union voted on that fact and they
did not want it there. So Mishawaka up to that time had
none of this type of work and that’s—that’s how it came to
Mishawaka. It was either there or try to find somebody else
to do it or go off shore with it and we would much rather
control our destiny building those type of products.’’ The
cable work being performed at Mishawaka goes into the
products at the plant in Severville. The Mishawaka cable
work can be performed in Severville, Tennessee. It would be
‘‘easy’’ to move the work to another plant. ‘‘Mishawaka is
I believe, our most competitive plant.’’ The Severville plant
is unionized.
According to Grasso, Melton said the ‘‘problems that were
existing here at Mishawaka could be resolved without any
union.’’
In the affidavit of Respondent witness Frank Simon Jr. ap-
pears, ‘‘Jay Melton did say there was no need for a union
and Mishawaka employees should not give up the right to
independent thinking.’’ Respondent witness Donald James
Simon testified that Melton said that ‘‘he had heard rumors
that some of us had, uh, thought about getting together for
a union meeting and, uh, he just let us know that we
shouldn’t have to do that . . . he had been in the union be-
fore, and, uh, he had seen both sides and he said in our situ-
ation he really didn’t see any reason for us to go in that di-
rection and he wished that we didn’t.’’
Ressler, Graham’s golf partner, testified that Melton said
that ‘‘in his opinion that he felt there was no need for a
union there.’’
Employee Kathy Nash was asked, ‘‘Did he [Melton] make
any promises about any of the employees’ complaints?’’ She
answered, ‘‘No. He just said he would look into them. He
said we would all talk about it and see if there is a need for
things.’’12
Nash testified that at the meeting employees lodged com-
plaints about the fans, tools, bathroom doors, and hot water.
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Four of these employees were discharged later.
14 As noted the attendance policy had been modified already on
June 30, 1994. According to Graham he had instructed Warren right
after the discussion with the employees to ‘‘update the policy . . .
to put the language in there about allowing up to one-tenth of an
hour tardiness . . . to update the policy to allow for these scheduled
medical treatments.’’
15 Graham testified that he ‘‘didn’t look at anything’’ prior to the
meeting to lead him to believe there was an absentee problem.
Graham said, ‘‘I had Scott Ressler telling me that the employees
thought it was a joke.’’
16 The statement read:
ELECTRO-VOICE, INC.
DICIPLINARY ACTION [sic]
EMPLOYEEllllll CLOCK#lll DATElll
DEPARTMENTlll NATURE OF OFFENSEllll
Based upon the review over the past several weeks Jay, Paul
and I have reviewed the entire situation in Mishawaka.
This review of the situation included quality, productivity, at-
tendance, and work record. After this review we have decided
to take corrective action.
In review of your situation for the length of employment your
absenteeism and tardiness is unacceptable. Therefore your em-
ployment is being terminated effective immediately.
According to Nash the hot water was ‘‘fixed’’ and fans were
furnished; and tables were added to the breakroom.
After the June 29, 1994 meeting Melton commenced meet-
ing individually with employees. He talked with Linda Vore,
December Barrows, Peggy Eichorst, Pam Buford, Eppie
Plank, Judy Smith, Michelle Kincses, Sandy Weaver, and
Tracy Dermody.13
Melton testified that he talked to these employees to get
their reaction to Grasso to ascertain their concerns such as
‘‘tools and what-have-you’’ and get acquainted with them. In
regard to the Union, Melton testified that he voiced the
‘‘same concerns about the union and the right to their inde-
pendent thinking, because, typically, they won’t get that from
the other side.’’
Graham meanwhile was in Oklahoma City where he was
informed by Warren that Northam was discharged. Graham
advised Melton that he was coming to the Mishawaka plant
right after the July 4th holiday to ‘‘review the circumstances
there.’’ What he wanted to deal with ‘‘were the hiring prac-
tices and the administration of the attendance policy.’’14 It
was a ‘‘prearranged meeting’’ with Melton, Warren, and
Grasso.
In the meantime on July 5, 1994, the Union held another
meeting at the Ramada Inn for the purpose of ascertaining
whether the employees wanted to proceed or wanted to back
off. Eight or nine employees attended. The ‘‘outcome of the
meeting was, that the people were still committed, and that
we would go ahead and petition.’’ A recognition letter was
prepared and a petition to the Board that Warzecha was
going to deliver to the Board at Indianapolis, Indiana.
On July 7, 1994, Warzecha delivered the recognition letter
to the Respondent at around 8:15 a.m. marked for Melton.
It was given to Margaret Michael, the office manager;
Warzecha then proceeded to Indianapolis to file the petition.
The meeting of Graham, Melton, Warren, and Grasso was
scheduled for 9 o’clock a.m. When Graham arrived he was
handed the recognition letter. Graham read the letter. Graham
testified that he was not surprised by the letter because of
‘‘the way Dennis Northam had been treating the people, and
the fact that Dana Fair has probably once a month, reminded
me . . . he is going to organize the plant.’’
At the meeting Warren produced a list of the Respondent’s
employees with points set out that Graham had requested.
Graham asked her to add hire dates. Thus the list of employ-
ees that Graham had in hand contained the points of each
employee and some hire dates.
Graham told Melton, Warren, and Grasso, ‘‘I think we’ve
dealt with this Northam here. And we need to get this plant
straightened out. And I think that we need to take some pret-
ty strict action here, to deal with this absentee problem.15
And my recommendation is that we look at anyone who has
more than seven points, or anyone who has less than six
months with us, that has a good number of points.’’
Graham testified he did not consult everybody’s attend-
ance records nor ‘‘personally consult any production
records.’’ Graham recommended that anyone with more than
seven points should be discharged. According to Graham he
went down the employee list and asked if there was any rea-
son action should not be taken against the employee. Warren
spoke for Debbie Lillo who had seven points because she
‘‘indicated that she did not have a full understanding of the
absentee policy in her earlier months, and that she had gone
through a heated divorce. And that since that time, she had
straightened out her record.’’
Graham said the employees chosen for discharge were dis-
charged ‘‘to accomplish, is that we wanted to get people se-
rious about our attendance policy, serious about coming to
work every day, and being there when they were supposed
to be.’’ (Emphasis added.)
Graham testified that the conferees discussed that dis-
charging the employees would be ‘‘a big hit.’’ ‘‘One of the
things that we concluded is that we had been carrying at
least one extra person because of the absentee rate. So by
getting people to come to work, there was one less probably
needed. And we would replace these people with people
from a temporary employment service that Minnie had con-
tact with. That was for contract labor.’’ Melton testified that
the Respondent would ‘‘suffer some short-term loss.’’
Warren, who participated in the discharge discussion, testi-
fied that she had not recommended any of the discharges;
Graham made the decision to discharge, the others concurred.
Apparently when Warren entered the meeting she did not
know that Graham was going to fire anybody. Grasso testi-
fied that he made no recommendations to discharge any em-
ployee. Grasso had a very limited participation in the meet-
ing.
Graham was asked, ‘‘What was so magical about the num-
ber seven?’’ Graham answered, ‘‘Seven seemed to me, to be
an exorbitant number.’’ ‘‘Q. All right. Well, why not six? A.
Seven occurred to me.’’ Except for Lillo, mitigating cir-
cumstances were not considered for any dischargee. The con-
ferees were asked, ‘‘[I]f there was any reason that we should
not take these actions with these people.’’
Graham determined that the discharges should take place
that day and directed Warren to read a statement16 which he
drafted to each employee as he or she was discharged. Gra-
ham did not participate in the actual discharge. Graham testi-
fied that the decision to discharge was based ‘‘solely on their
1103ELECTRO-VOICE, INC.
17 Weaver answered, ‘‘Right’’ to the question ‘‘when you say you
were a bad as Ms. Buford, meaning that you, too, were involved in
starting the union?’’
excessive and chronic absences . . . with some additional in-
formation coming to play with performance on at least three
individuals’’ (Kendall, Havens, and Shaffer). In his affidavit,
Graham stated, ‘‘I told Minnie to be sure to tell the employ-
ees—That they were being discharged for excessive or
chronic absenteeism and tardiness.’’ Graham’s seven-point
method for discharging employees had never been used indi-
vidually or en masse before. Graham testified that in ‘‘most
cases’’ mitigating circumstances would be considered. No
mitigating circumstances were considered for the discharged
employees. Neither were their attendance records checked.
Graham testified that he made up his mind to discharge
the employees when he looked at ‘‘the summary of the ab-
sentee problems.’’ Graham also testified he was moved be-
cause ‘‘our absentee program was being viewed as a joke.’’
Temporary employees were hired who went to work the
next Monday. ‘‘We didn’t need as many people as we were
letting go. We could do it with less people.’’
Later, some of the dischargees were rehired, Graham testi-
fied that they were rehired because, ‘‘We wanted to cut off
some of the liability.’’ ‘‘Because we wanted to give them an-
other chance.’’
Although an employee may be discharged for accumulat-
ing 13 points Graham testified, ‘‘That didn’t necessarily
mean that would be automatic discharge.’’
According to Graham the Mishawaka plant is about evenly
split between the number of people who work in fiberglass,
the front of this plant, and the people who work in assembly
in the back half of the plant. The fiberglass and horn oper-
ation is ‘‘absolutely critical’’ to the Company’s operation be-
cause there are not dependable suppliers and they are unique
to the Company. The backroom came in existence when the
Company had an opportunity to recapture the building of ca-
bles from an outside vender for government business. To re-
capture this business the Company needed a lower labor rate.
The work was offered Buchanan but the Union refused to
make the adjustments so the work was put in Mishawaka.
Later a portable loud speaker called the S-40 was placed in
Mishawaka where there were lower labor rates and lower
overhead. According to Graham, ‘‘there was just no way that
we could do it with the labor—the labor structure’’ in Bu-
chanan or Newport. Competition was keen enough for the
Company to place these operations in Mishawaka.
Graham testified, ‘‘[T]here is way too much invested there
to—to, uh— . . . to let the plant go at the—the kind of risk
that we thought it was.’’
Employee Frank Simon Jr. described a previous union
campaign in which he participated in the summer of 1988.
The campaign was widely known by management and all the
employees in the plant. About 14 to 16 employees were in-
terested. The movement ‘‘just went away’’ after the employ-
ees met with the Company. ‘‘We just wanted to know where
we stood and what kind of money we could make.’’
Respondent witness Sandra Lee Weaver testified that she
talked to Grasso on July 6, 1994, Grasso was reported to
have said Weaver was as ‘‘bad’’17 as Buford ‘‘[b]ecause the
way she was manipulating everybody to get into the union.’’
Weaver went to Grasso for clarification. Weaver testified that
Grasso mentioned the Union to her ‘‘because they knew the
meetings were going on.’’ Grasso asked Weaver why she
was ‘‘upset.’’ Weaver explained to him ‘‘why and he sat and
talked to [her] and comforted [her].’’ Weaver admitted that
she had signed a union card.
Grasso admitted that Weaver had come to him in his of-
fice and asked if he had made ‘‘some derogatory remarks
about her.’’ ‘‘She discussed about a meeting that they had
the night before. . . . she said it was a meeting where she
had signed a card for a union. . . . she wanted to know
what to do. . . . she wanted to know if she could retrieve
it.’’ Grasso responded, ‘‘I thought that was an option that she
had if she really didn’t want to sign the card.’’ Weaver
called Warzecha and told him to tear up her card.
Weaver testified that there were employees who feared for
their jobs. Incongruously Grasso denied that he had heard
about the Union prior to July 5, 1994, at which time he
learned while firing Shaffer that there was union activity.
Weaver signed her card on June 24, 1994.
Barrows testified that in January Northam, in response to
someone calling Buchanan and complaining, told employees
‘‘there was no use for us arguing over the policy because the
policy was not going to change.’’ Bentley testified Northam
had said that ‘‘there would be no union in his shop, they
would close it down first.’’
Kincses testified that Grasso, while talking to a group of
‘‘girls,’’ commented that it ‘‘might happen’’ that the Re-
spondent would close the plant if the Union came in. This
statement occurred about the time Melton made his first
speech.
After the meeting of Melton according to Barrows ‘‘peo-
ple were starting to feel scared. . . . Afraid that they would
lose their jobs.’’ Bentley also testified that the employees
were ‘‘getting scared . . . [c]ause the company was telling
us that there wasn’t going to be a union they feared for their
jobs.’’ Kincses testified in a similar vein.
A. The Absenteeism Policy
Until June 30, 1994, the Respondent followed a written
absenteeism policy dated March 1, 1987. Among other things
the policy provided:
In order to assure consistency in administration and
equity in treatment no-fault absenteeism policy and pro-
cedure will be used. Absenteeism is defined as being
absent from work on any scheduled work day, even
though the employee has reported such absence. Tardi-
ness is defined as reporting to work after the scheduled
starting time. [G.C. Exh. 3.]
Under the policy employees were given points for ab-
sences and tardiness. If an employee received 3 points, the
employee received a verbal warning; 5 points, a written
warning; 7 points, 1-day suspension; 10 points, 5-day sus-
pension; and 13 points, discharge. The following were not
considered absences: work-related disability, hospital con-
finement, jury duty, military duty, vacation, holiday (des-
ignated), ambulatory surgery, and preadmission testing. Em-
ployees’ points were reduced by one point for each 2-month
period in which he or she had not incurred a chargeable oc-
currence.
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The written policy further provided in paragraph 7, ‘‘This
policy and procedure is in addition to action that may be
taken when cumulative time lost from work for any reason
renders the employee an undependable employee, e.g.,
lengthy and frequent occurrences which makes the individual
a part time employee.’’ (G.C. Exh. 3.)
On June 30, 1994, the policy was altered in some respects.
To those absences that were not chargeable absences were
added paid funeral leave and long-term medical treatment.
The 2-month period for earning credit was defined as 40
days. Half-point penalty was changed to allow 6 minutes lee-
way before the penalty was attached.
Graham testified that it did not ‘‘necessarily mean’’ that
an employee would be automatically discharged if he viewed
13 points. Respondent witness Donald James Simon, who
had been employed by the Respondent since December 1986,
described his understanding of the absentee policy:
[I]t is on a point system. . . . It is after so many points
that you get a verbal warning. So many more points,
you get a written warning and then after that, you get
a day off, and for so many more and so on and so on
you get a week off and then after so many other points,
you get the most you can get, I suppose, you can be
released. . . . this is a no-fault system. [Simon’s view
of the absentee policy was shared by other employees.]
Warren testified that the seven employees were discharged
in July pursuant to the part-time employee provision. She did
not so advise the employees, however, that they were dis-
charged for this reason. Warren was asked, ‘‘Now supposing
a person is absent and you’re thinking about, maybe, firing
him. Do you tell him first that he might be fired if he didn’t
shape up?’’ Warren answered, ‘‘Yes.’’ Warren was also
asked, ‘‘[I]f I’ve worked there for a month and I’m starting
to have a problem, would it be fair to say that I would, prob-
ably, get some sort of warning if my attendance starts to—
started to slip?’’ Warren answered, ‘‘Yes.’’ Warren was also
asked, ‘‘Under Section 8, what would one have to do in
order to be a part-time employee? How many absences
would one have to have?’’ Warren answered, ‘‘It depends on
how the level of service and how chronic they were.’’ There
is no ‘‘set number’’ of absences that is used to determine
whether an employee is a part-time employee. Margaret Mi-
chael, office manager who instructed new employees, did not
explain to employees specifically what part-time employees
were.
B. Discharge of Pamela J. Buford
Pamela J. Buford worked for the Respondent from No-
vember 10, 1993, to July 7, 1994. She worked on the speaker
line, the military line, and did cable work. She was hired by
Northam and the pay rate was $5.50 an hour. When hired
she was handed the Respondent’s policy on attendance. In
January or February 1994 she phoned Warren. Melton was
hooked into the conversation. Buford complained about
Northam, no hot water in bathroom, the point system was
unfair (Northam would give no ‘‘leeway’’), and didn’t have
the right tools. She asked Warren to come to the plant.
Buford phoned Warren again in about a week. Warren said
she was coming ‘‘hopefully soon.’’ Warren was at Bu-
chanan.
In that no results even accomplished from Buford’s con-
tacts with the Respondent’s management, Buford, as above
noted, started the union movement. She signed a union card.
After the above-mentioned meeting in which Warren
talked about drugs, Warren met individually with Buford.
The meeting was in Northam’s office. Buford reviewed her
complaints.
Shortly after the foregoing interview, Buford’s son was
scheduled for surgery. She asked for 3 days off. It was de-
nied and Buford took a suspension for 5 days so she could
be with her ailing son. She returned to work on July 1, 1994.
Around July 5, 1994, Buford was called into the office.
Melton and Warren were present. Buford described the inter-
view:
Mr. Melton proceeded to say that he didn’t know what,
to what extent my involvement was in the Union, but
that he could assure me that there would—that this
would not be a union shop, that the other plants, I be-
lieve Buchanan, he said, would be glad to have our
work.
He ran the union down. He said that he was on the
union at one time, Minnie and himself both and that it
didn’t do anything for them, basically just badmouthing
the union.
Q. Did Ms. Warren say anything?
A. Yes. She did. She looked at me and she said, are
you or do you know of anyone else that is involved in
the union? And I just looked at Jay Melton and I said,
what union?
. . . .
He was very disgusted [sic] at what I said. And he
started going over again that this would not be a union
shop, that the doors would close first.
Warren testified that she asked Buford if she was aware
that ‘‘there’s an organizing attempt going on.’’ According to
Warren, Buford answered, ‘‘I don’t know nothing about no
union.’’ Warren testified that Melton called the meeting with
Buford because Buford had missed the two meetings and
‘‘he thought that we should bring her up to date on what
went on at those meetings.’’
Melton testified that he among other things talked about
with Buford was the ‘‘bathroom and tools and stuff’’ and
about Grasso. He told her that there was an attempt to orga-
nize the Union. At the time both Melton and Warren knew
that Buford had effected a suspension so that she could be
with her ailing son.
On July 7, 1994, Buford was called again into the office
where Warren and Grasso were present. Warren read the fol-
lowing letter to her and told her that she was terminated.
ELECTRO-VOICE, INC.
DICIPLINARY ACTION [sic]
EMPLOYEE: Pam Buford CLOCK #: 8175
DATE: July 7, 1994 DEPARTMENT: Cable
NATURE OF OFFENSE: Absenteeism
Based upon the review over the past several weeks
Jay, Paul and I have reviewed the entire situation here
in Mishawaka.
1105ELECTRO-VOICE, INC.
This review of the situation included quality, produc-
tivity, attendance, and work record. After this review
we have decided to take corrective action.
In review of your situation for the length of employ-
ment your absenteeism and tardiness is unacceptable.
Therefore your employment is being terminated effec-
tive immediately.
Orally Buford was told the termination was because of her
‘‘efficiency rate and [her] absenteeism.’’ Buford had accu-
mulated 10 points; she had not been cautioned for lack of
productivity nor for excess absenteeism nor had she been
reprimanded for engineering 5 days off to attend her ailing
child.
Grasso testified that when Buford was terminated she was
‘‘irate’’ and threatened the Respondent with a lawyer. She
was told that she was being discharged ‘‘because of our pol-
icy in the Company that it was warranted and we asked her
to leave.’’ Three times she was asked to leave and then she
was escorted out of the plant. Grasso testified that he did not
advise Buford that she would be fired after she received the
5-day suspension or the next point.
As noted above the Respondent knew at the time of
Buford’s discharge that she was a union pusher from Wea-
ver’s revelations.
It is significant that Buford was the first employee dis-
charged and Kincses was the second. On the list of employ-
ees used by Graham to pick the dischargees Buford and
Kincses were noted in handwriting as mother and daughter.
C. Discharge of Michelle Jo Kincses
Michelle Jo Kincses was hired May 4, 1994. She worked
on ‘‘crossovers, [a part that goes in to speakers] as an assem-
bler.’’ Kathy Nash advised her of the attendance policy.
The first union discussions commenced at Kincses’ home.
Her mother is Buford. Scott Kendall is Kincses’ future hus-
band. Buford started the union talk at the plant. Conversa-
tions were held in the breakroom and elsewhere. Kincses at-
tended the two union meetings, signed a union card, and
served on the union committee.
Kincses met with Warren in the manager’s office. Warren
asked her if she had any complaints. Kincses said hot water
and fans were needed. She also mentioned wages and the
point system. Warren said that ‘‘she thought she was going
to revise the point system.’’ Kincses also said that ‘‘pay
should be higher.’’ Kincses quoted Warren as saying that
‘‘her opinion of the Union wasn’t good. . . . all they did
was take her money and . . . it didn’t help out like she
thought it would.’’ ‘‘[S]he asked me if there was a union
there, if we had an election, would I vote for it. And I said,
yes. And she said, do you think most of the majority would?
And I said, yes.’’
Kincses’ work was never criticized and she was com-
plimented on her work.
A day or two after Melton’s group meeting he met with
Kincses in the manager’s office. Melton said he would be
taking Northam’s place. He asked Kincses whether she had
any complaints or had had problems with Northam. Kincses
told Melton that hot water was needed. Kincses said that the
positions in the Michigan plant were better ‘‘[c]ause there
was a union there and they took care of their people.’’
Melton then asked Kincses whether she had signed a ‘‘blue
card’’ or if anybody else had signed one. He added ‘‘if any-
body thinks that they are going to save their job or from the
plant closing down, they won’t. . . . He said that our work
would go there [Austin, Texas]. . . . If a union came in.’’
On July 7, 1994, Kincses was called to the office where
Warren and Grasso were present. Warren said that ‘‘because
of my—how many days I have missed . . . and my poor
quality of work, that I was terminated.’’
The day Kincses was fired she ‘‘was supposed to work
over[time]. . . . 700 crossovers that needed to go out in
three days.’’ Grasso testified that Kincses cried when she
was informed that she was discharged.
At the time Kincses was discharged she had three points.
After Kincses was discharged, Warren phoned Kincses and
asked her if she wanted to come back to work ‘‘that my po-
sition was highly respected.’’ Kincses accepted and returned
to work on October 22, 1994.
When she returned there was hot water, ‘‘We have
shelves. For people that solder, we have those things that
suck up smoke and take it over your head’’ and more fans.
The breakroom had been improved. There are ‘‘new tools.’’
On the list of employees reviewed by Graham, above
noted, is drawn a line between Kincses and Buford on which
is written ‘‘Mother daughter.’’
D. Discharge of Scott Kendall
Scott Kendall was hired by Northam in February 1994 as
a grinder of stadium horns. He worked in the grinding trim
room. He received $6.50 an hour. Northam told Kendall
‘‘that 13 points doesn’t necessarily mean that you’re going
to get fired.’’
Kendall attended the two union meetings, signed a union
card, and served on the union committee.
On one occasion Northam told Kendall that his ‘‘work was
good and [he] wasn’t in jeopardy of losing [his] job.’’
Kendall met individually with Warren (see supra).
On July 7, 1994, Kendall was asked to go to the office.
Warren said, ‘‘Looking over my records, being my absentee-
ism and my quality and rate of work, they was going to ter-
minate me.’’ Kendall became angry and ‘‘cussed her out.’’
He told them he was fired because of the Union. Kendall had
8-1/2 points.
Simon Jr. testified, ‘‘I think [Kendall] got frustrated and
he didn’t do as much work as he could have done. He spent
a lot of the time in the bathroom . . . he was slow. He
wasn’t happy at his job.’’ According to Simon Jr., he re-
ported the foregoing opinion to Northam and to Grasso after
Northam was fired. ‘‘He was a bad worker, probably due to
unhappiness.’’ Kendall was unhappy because ‘‘the exhaust
fans weren’t powerful enough to carry out the dust and it
was getting all over his skin.’’ Although Simon Jr. claimed
that he reported Kendall’s work habits to Northam, Northam
did nothing about it.
In referring to Kendall, Donald James Simon, a Respond-
ent witness, testified, ‘‘I don’t think he did a bad job.’’
Scott Ressler, a Respondent witness, testified that he saw
Kendall go to the bathroom 12 minutes at a time at least 3
or 4 times a day and that Kendall got behind with his work.
Ressler reported none of his absenteeism to supervision.
Grasso testified that he never spoke to Kendall about his
alleged ‘‘deficiencies.’’ Grasso made no recommendation to
Graham in regard to Kendall.
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
E. Discharge of Sherrie Elaine Mize
Sherrie Elaine Mize was hired for cleaning cables on May
31, 1994, for $5.75 an hour. She was told that after employ-
ees received 13 points they would be fired.
Mize attended the union meeting at Riggio’s. Sometime
after the union meeting Mize met individually with Warren
(see supra).
Mize signed her union card the day before she was dis-
charged. She explained, ‘‘[W]ith them threatening to close
the plant down I got scared . . . [s]o I backed off. Well,
then, when she [Buford] got back from her suspension, then
I went to her and I asked her some questions so I could un-
derstand, and then I said I’d go ahead and sign now that I
understood, because I wanted to be a part of the union.’’
On July 7, 1994, Mize was told to come to the office.
Warren ‘‘let [her] know that because of [her] points, [her]
efficiencies, and [her] work record, they were firing [her].’’
Mize had two points.
At the individual interview with Warren, Mize had told
Warren she had received two points for being absent with the
flu, one day her car broke down for which she received two
points.
According to Mize her work was never criticized.
On October 24, 1994, Mize returned to work. When she
returned to work she noticed improvements.
Mize was worried about her efficiencies which she related
to Grasso. He said, ‘‘[Y]ou didn’t get fired before for your
efficiencies and work record. It was because of your points.’’
Grasso also commented, ‘‘Well, I think you might have just
got caught up in a bad situation.’’
F. The Discharge of Tracy Marie Bentley
Tracy Marie Bentley commenced work with the Respond-
ent on March 15, 1994, as an assembler. When hired she was
told about the 13-point system by Northam.
Bentley attended the union meeting at Ramada Inn and
signed a union card. She also met with Warren in the main
office. Among other things Warren asked her if she had any
problems with management or her supervisor.
On July 7, 1994, Bentley was escorted into the office.
Warren said, ‘‘Tracy you have ten and a half points.’’ Bent-
ley said, ‘‘No.’’ ‘‘[O]kay, Tracy, you have seven and a half
points. And this is unacceptable. Therefore, we are terminat-
ing you.’’
According to Bentley no one had criticized her work.
On October 11, 1994, Bentley was called back to work.
Warren told her that they had ‘‘reconsidered [her] termi-
nation and wanted to rehire [her].’’
Bentley returned to work.
G. Discharge of Jason Allen Havens
Jason Allen Havens was employed on May 24, 1994, to
work in final finish, sanding, buffing, and repairing parts of
speakers. Haven testified that when he was hired he was told
you were fired after 13 points; 5 points, oral warning; 7
points, a day off. When discharged he had three points.
Havens first heard of the Union from Buford as he was
returning from break. He attended the two union meetings.
He signed a union card and became a member of the union
committee.
Havens met with Warren at which meeting among other
things he asked him if he had any complaints.
Havens was called in the office on July 7, 1994, where
Warren and Grasso were. Havens was fired. ‘‘They said it
was because of attendance.’’ No other reason was given. He
told Warren that ‘‘she excused one [absence] and Dennis had
excused the other ones, and I assumed that they kept my
doctors’ excuses.’’ Havens asked, ‘‘Well, am I being fired
because of the union activity?’’ ‘‘[S]he just kind of smirked
a little bit.’’
Havens had received two points. He denied that he had
spent excessive time in the bathroom. He was told that he
did a ‘‘good job.’’
Grasso testified that he had heard some complaints about
Havens spending too much time in the lavatory and that
‘‘[h]is work was below par.’’ Warren testified that she be-
came aware of the fact that Havens was standing around, lin-
ing up at the timeclock, and going into the bathroom.
Respondent witness Frank Simon Jr. accommodated the
Respondent by testifying that Havens ‘‘made anywhere from
a half a dozen to a dozen trips to the bathroom a day and
no less than ten minutes a trip.’’ Simon told Grasso that he
‘‘didn’t think he [Havens] was going to work out.’’
Simon Jr. testified that he advised Grasso upon Grasso’s
request that ‘‘Jason doesn’t appear like he is interested in
working here.’’ ‘‘I didn’t recommend that he be fired. I rec-
ommended that either he would pick up his work pace, be
given a certain amount of time or be dismissed, but not fired
on the spot.’’ Grasso’s testimony does not corroborate Simon
Jr.’s testimony.
Prior to his discharge Havens had neither been warned nor
disciplined concerning his work habits.
Graham was asked why Havens was selected for dis-
charge. He answered, ‘‘Because he was—had only been em-
ployed for two months.’’
H. The Discharge of December Ellen Barrows
December Ellen Barrows was first hired in 1992. In 1993
she quit to go to Missouri. She stayed in Missouri for 2
weeks. When she came back she was asked to return to
work, which she did. She worked in assembly.
Barrows described the attendance policy as explained by
Northam.
‘‘Thirteen points, discharged.’’ Barrows attended two
union meetings and signed a union card. She met with War-
ren (see supra). She also met individually with Melton in
Northam’s old office. ‘‘He said that he would like to try to
get things done for us. If there was anything he could do,
he’d like to know. And he just more or less started putting
the union down. . . . [T]he union couldn’t do anything for
us.’’ ‘‘[T]hey were working on trying to get [attendance pol-
icy] straightened out.’’ On July 7, 1994, she went with
Grasso in the office. She was told ‘‘that they had been going
over the records and they were letting go people with bad
attendance and bad work records and I was being let go be-
cause of my attendance.’’ Barrows had 12 points.
According to Warren when she conducted the individual
interview with Barrows the question of points was raised.
Barrows said that she had 12 points. Warren did not discuss
with Barrows ‘‘what might occur to her if she continued to
get more.’’
1107ELECTRO-VOICE, INC.
18 The horns were fiberglass. Shaffer hand-sanded them ‘‘down to
where the rough stuff is off them.’’
19 Grasso had observed a heated discussion between Simon and
Shaffer. He told both employers he did not want it to happen again.
I. The Discharge of Tracey Jean Dermody
Tracey Jean Dermody was discharged on July 8, 1994.
She had commenced work on December 13, 1993. She was
hired by Northam to be an ‘‘assembler, cabler, work the
speaker lines and the military lines’’ at $5.50 an hour. In re-
gard to absenteeism, Dermody was told ‘‘once you reach 13
points you are discharged’’ and that it was a no-fault system
and that an employee could be excused for ‘‘death [in] im-
mediate family, jury duty, [and] pre-scheduled surgery.’’
At the end of May 1994, Dermody had received a 1-day
suspension for being absent. Thereafter she had a reoccurring
medical problem of which she informed Kathy Nash and
Grasso. The problem started at the end of April. Recently she
has had surgery to correct it.
Dermody attended the union meetings, signed a card, and
served on the committee. She also had an individual meeting
with Warren (see supra).
In the beginning of July Dermody met individually with
Melton in the manager’s office. According to Dermody, ‘‘He
started talking about the union again. Said the same thing
about how the union can’t protect your job and the union
can’t get you more money. And if you signed a blue card,
you could get it back. They don’t tell you that. And he said,
they don’t tell you you can get it back, but you can.’’
Dermody said that she wasn’t ‘‘aware of a union card.’’
Melton also said, ‘‘We are small and movable.’’
Grasso walked over to where Dermody was working and
she asked him ‘‘why is everybody so interested in our com-
plaints now? And he goes, ‘well, it’s not what you think.
Minnie was down here before your meeting.’ And I go, what
meeting. And he said, ‘I’m not stupid’ and walked away.’’
Dermody had been absent because of illness on July 7,
1994. When she arrived at the plant on July 8, 1994, her
card was in the rack. Grasso approached her and escorted her
to the office. Melton walked in and said, ‘‘[T]hat people who
are absent a lot, its hard to get production out.’’ Dermody
said, ‘‘[Y]ou didn’t worry about that last week when you
were holding an hour long meeting. And he rolled his eyes
at me.’’ Grasso said, ‘‘[Y]ou are immediately terminated due
to your absenteeism.’’ Dermody said, ‘‘Minnie said that peo-
ple are questioned and things are investigated before some-
body is fired.’’ Grasso answered, ‘‘Minnie is not hear [sic]
to answer that.’’ Dermody’s production had been satisfac-
tory.
Dermody received a certified letter to come back to work.
Because she had been in Texas having surgery, she missed
the cutoff date set out in the letter. She talked to Paul who
later told her to come to work and bring a medical excuse.
She went to work on December 5, 1994. Work conditions
had been improved.
J. Discharge of David E. Shaffer
David E. Shaffer was hired by Northam on April 11, 1994,
to sand down horns (speakers)18 at $6 an hour. Northam told
Shaffer when he was hired that if he received ‘‘12 points,
you would be discharged.’’
Shaffer heard about the Union from Buford and attended
the union meetings of June 17 and 22, 1994, and signed a
card.
A month after Shaffer was employed he received a 25-
cent-an-hour raise.
Shaffer was discharged on July 5, 1994. When he arrived
at work that day his timecard was missing from the rack.
Shaffer proceeded to the office where he met Grasso. Grasso
told him he was terminated. Shaffer asked, ‘‘Why?’’ Grasso
replied that Shaffer was grinding the speakers down. Shaffer
responded, ‘‘[T]hat’s wrong. . . . Why would they have me
working there three months grinding them down and I
wasn’t.’’ Grasso then said, ‘‘[Y]ou were in Frank’s space
[sic].’’ Shaffer answered, ‘‘[N]o I wasn’t.’’ (Shaffer had er-
roneously accused Frank Simon of stealing speakers.) Grasso
said Shaffer was ‘‘getting in Frank’s face.’’
Shaffer explained the incident to Grasso and asked that
Simon be brought in. ‘‘If someone is convicting you of
something or—usually, you got the chance to talk to that
person.’’ Grasso answered, ‘‘[T]his ain’t no union shop’’ and
kind of snickered. Shaffer said, ‘‘[O]h, that’s what this is
[all] about.’’ Shaffer asked to talk to Melton. Grasso replied
that if Shaffer did not leave ‘‘he was going to call the law.’’
Shaffer persisted and when Melton came Grasso and Shaffer
went into his office. Shaffer told Melton the reason he was
being fired was wrong. ‘‘If I ground the horns down and that
and then turn around and say I am being fired for getting
in Frank’s face.’’ Melton responded, ‘‘[T]hat was [his] prob-
lem.’’
Shaffer was never warned about faulty work. Shaffer testi-
fied he never broke any horns or had been told to keep busy
by other employees.
Grasso testified that he had discussed Shaffer’s work hab-
its with Melton on July 3 and 5, 1994. Grasso testified that
he had passed on to Melton that: ‘‘Frank mentioned it to me
that he had broken some horns.’’ Grasso also testified he saw
Shaffer ‘‘away from his work area.’’ Melton was present at
the termination.
Grasso testified that Shaffer was discharged because
‘‘[t]here was accumulation of his points, his attitudes towards
what I’ve been telling him not to do [apparently a verbal
confirmation19 with the group leader and talking to other em-
ployees] his work habits, and the fact that he was damaging
horns.’’
According to Grasso, ‘‘I warned him about the confronta-
tion with Frank. I asked him about the horns . . . what was
going on with damaging the horns. I asked him to stay in
his work area.’’
The Respondent in its brief claims that Shaffer dropped at
least one horn a day. Shaffer damaged, according to the Re-
spondent’s brief, a ‘‘dozen fiberglass horns costing up to
$1,100.00.’’ If this were true Shaffer would have destroyed
horns valued at $13,200. It is preposterous to assert that had
Shaffer caused that much damage he would have lasted a
week. The Simons, Grasso, and Ressler were not credible
witnesses.
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
K. The Alleged Supervisory Status of Kathy Nash
The General Counsel claims that Kathy Nash was a super-
visor within the meaning of the Act.
Buford testified, ‘‘She [Nash] was my main supervisor.
She told me what jobs to do, what stations to go to and
work.’’
Mize testified that Nash was her immediate supervisor.
Nash told Mize what to do and Mize went to her for any
problems she had.
Barrows corroborated Mize. Barrows testified that Nash
evaluated her and signed her evaluations. Nash has a desk.
There is paperwork on the desk. Nash also tells employees
where they are going to be on the job. Nash ‘‘take[s] the
place of somebody if they had to go to the bathroom,’’ and
she might fill in for an absent employee if she could not find
someone to fill the job. Nash did not work on the line on
a regular basis. Nash had 12 or 15 employees in the cable
department under her charge. Northam was Nash’s imme-
diate supervisor. He visited the department occasionally.
Bentley testified that she went to Nash when she wanted
time off and the ‘‘bulk’’ of her time is ‘‘[s]itting at her desk
doing stuff at the computer.’’
According to Kincses, Nash told her she was her super-
visor. Sometimes Nash would say, ‘‘[C]ome on, let’s get to
work girls,’’ and that sometimes Nash would move employ-
ees from one job to another.
Kincses also testified that Nash ‘‘works over the people
. . . on the speaker line and cable work, earphones and stuff
like that.’’
Dermody testified that Nash was her immediate supervisor.
She gave out assignments. ‘‘When people would have to use
the restroom, she would come take their place or if you got
behind, you would call for her or somebody to help you.’’
According to Dermody, Nash may have spent 3 hours a day
in assembly work.
Nash described herself as a ‘‘group leader, department
head’’ in the ‘‘back room’’ (cable assembly). According to
Nash she trains employees, gives them their jobs, brings
parts to them, and gets information for them. Whether she
does production work depends whether there is absenteeism.
‘‘If there wasn’t any, then I just spent my time training and
looking over stuff.’’ ‘‘I usually go around every morning
. . . [to] get them going.’’ Between 13 and 14 employees are
under Nash as group leader. Nash makes work assignments
based on her assessment of the ability of the employees.
Weaver testified that she is under Nash. When Nash is out
Weaver takes over the whole backroom. On a day-to-day
basis she leads the cross-crossovers. Nash takes care of all
cable. There are four employees in cross-crossovers. Accord-
ing to Weaver, Nash evaluates her including the employees
under her.
Graham testified that Nash signs employee evaluations,
Nash has a desk and a computer for tracking various produc-
tion records, as department head Nash attends meetings with
Grasso and Melton, Nash receives more wages than other
employees, and Nash places employees in jobs that she
thinks they can work best.
Nash may pick employees to work overtime, Nash is re-
sponsible for training new employees, and Nash inspects the
work in her department to make sure it is performed prop-
erly.
A supervisor is defined in Section 2(11) of the Act as
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, lay off, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if
in connection with the foregoing the exercise of such
authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.
The law on the subject is well summarized by Administra-
tive Law Judge Itkin in the case of Amperage Electric, 301
NLRB 5, 13 (1991):
Actual existence of true supervisory power is to be dis-
tinguished from abstract, theoretical, or rule book au-
thority. It is well established that a rank-and-file em-
ployee cannot be transformed into a supervisor merely
by investing him or her with a ‘‘title and theoretical
power to perform one or more of the enumerated func-
tions.’’ NLRB v. Southern Bleachery & Print Works,
Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert. denied
359 U.S. 911 (1959). What is relevant is the actual au-
thority possessed and not the conclusory assertions of
witnesses. And while the enumerated powers listed in
Section 2(11) of the Act are to be read in the disjunc-
tive, Section 2(11) also ‘‘states the requirement of inde-
pendence of judgment in the conjunctive with what
goes before.’’ Poultry Enterprises v. NLRB, 216 F.2d
798, 802 (5th Cir. 1954). Thus, the individual must
consistently display true independent judgment in per-
forming one or more of the enumerated functions in
Section 2(11) of the Act. The performance of some su-
pervisory tasks in a merely ‘‘routine,’’ ‘‘clerical,’’
‘‘perfunctory’’ or ‘‘sporadic’’ manner does not elevate
a rank-and-file employee into the supervisory ranks.
NLRB v. Security Guard Service, 384 F.2d 143, 146–
149 (5th Cir. 1967). Nor will the existence of independ-
ent judgment alone suffice; for ‘‘the decisive question
is whether [the individual involved] has been found to
possess authority to use [his or her] independent judg-
ment with respect to the exercise [by him or her] of
some one or more of the specific authorities listed in
Section 2(11) of the Act.’’ See NLRB v. Brown &
Sharpe Mfg. Co., 169 F.2d 331, 334 (1st Cir. 1948). In
short, ‘‘some kinship to management, some empathetic
relationship between employer and employee, must
exist before the latter becomes a supervisor of the
former.’’ NLRB v. Security Guard Service, supra.
The following factors establish that Nash exercised inde-
pendent judgment in assigning work and responsibility di-
recting other employees.
Nash possessed authority to assign jobs to employees
working under her. Employees viewed her as their super-
visor. Employees referred problems to Nash. Nash evaluated
employees and signed evaluations. Nash occupies a desk.
Nash tells employees where they are going to be on a job.
Nash did not work on the line on a regular basis. Nash had
12 to 15 employees under her charge. Employees requested
time off from Nash. The bulk of Nash’s time is spent
‘‘[s]itting at her desk doing stuff at the computer.’’ Nash
moved employees from job to job. Nash trained employees.
Work assignments were made on the basis of an employee’s
1109ELECTRO-VOICE, INC.
ability. As department head, Nash attended meetings with
Melton and Grasso. Nash received more wages than other
employees. Nash may choose employees to work overtime.
Nash inspects employees’ work.
I find Nash is a supervisor within the meaning of the Act.
See Clark & Wilson Industries, 290 NLRB 106 (1988);
McDonald Mitler Co., 277 NLRB 701, 703 (1985); and Am-
perage Electric, supra.
IV. VIOLATION OF SECTION 8(a)(1) OF THE ACT
First: Warren’s solicitation of employees’ complaints and
grievances on June 23, 24, 25, and July 5, 1994, were in vio-
lation of Section 8(a)(1) of the Act. Melton’s solicitation of
employees’ complaints and grievances in individual inter-
views with employees and his solicitation of complaints in
his addresses to employees were in violation of Section
8(a)(1) of the Act.
It was clear from the representation of Warren and Melton
that employees’ complaints and grievances would be favor-
ably considered. In fact the complaints and grievances were
favorably treated. Melton was asked, ‘‘Was their any particu-
lar issue or problem or concern that was raised that you
promised right on the spot to take care of?’’ Melton an-
swered, ‘‘Fans in particular.’’
In the case of Merle Lindsey Chevrolet, 231 NLRB 478
fn. 2 (1977), the Board stated:
We agree with the Administrative Law Judge that by
telling employees he wanted to ascertain and talk about
their problems Respondent’s president, Merle Lindsey,
violated Sec. 8(a)(1) of the Act. Uarca Incorporated,
216 NLRB 1 (1974). In that case, the Board stated:
[T]he solicitation of grievances at preelection meet-
ings carries with it an inference that an employer is
implicitly promising to correct those inequities it dis-
covers as a result of its inquiries. . . . However, it
is not the solicitation of grievances itself that is coer-
cive and violative of Section 8(a)(1), but the promise
to correct grievances or a concurrent interrogation or
polling about union sympathies that is unlawful; the
solicitation of grievances merely raises an inference
that the employer is making such a promise, which
inference is rebuttable by the employer.
In the instant case, there is no evidence that Respondent
made any statement or took any action to establish that
it was not promising to remedy grievances and we
therefore find that Respondent did not meet its burden
of rebutting the inference.
As in the Merle Lindsey Chevrolet case, the respondent
made no statement or took no action to establish that it was
not promising to remedy the problems and thus did not rebut
the inference. See also Gull, Inc., 279 NLRB 931 fn. 1
(1986).
The following statements and remarks were in violation of
Section 8(a)(1). Warren’s statement to Barrows ‘‘[t]hat she
had been in the union; the union could not do anything for
us.’’ Warren’s statement to Kendall that ‘‘she didn’t believe
that there was enough people to support [the] union.’’
Melton’s statement ‘‘this will not be a union shop.’’
Melton’s statement that Mishawaka work would go to a plant
in Austin, Texas, which had a fiberglass shop, if ‘‘a union
came in.’’ Melton’s statement ‘‘there would not be a union
or the plant would shut down.’’ Melton’s statement that
‘‘there would be no union in that shop. . . . the plant would
close down first.’’
Melton’s statement: ‘‘[T]here will be no union here in the
shop. . . . he was part of the union at one time and the
union didn’t do anything for him. . . . the union can’t give
us more money.’’
Melton’s statement ‘‘there will not be a union. . . . if the
Union [comes] in the plant, or words to this effect, that the
plant [will] be closed’’ (Vore’s testimony).
Melton’s admitted statement ‘‘there is no need for a union
in Mishawaka. . . . my experience in a union, they can’t do
anything for you, that only the company can give you
things,’’ said in conjunction with the Respondent’s promise
of improvements.
Melton’s admitted statement that ‘‘there was no need for
a union because of the problems we had in the plant.’’
Melton’s statement ‘‘problems that were existing here at
Mishawaka could be resolved without any union.’’ (Grasso’s
testimony.)
Melton’s statement that ‘‘he had heard rumors that some
of us had, uh, thought about getting together for a union
meeting and, uh, he just let us know that we shouldn’t have
to do that. . . . he had been in the union before and, uh, he
had seen both sides and he said in our situation he really
didn’t see any reason for us to go in that direction and he
wished that we didn’t.’’ (Testimony of Respondent witness
Donald Simon.)
Melton’s remark to Buford while he and Warren were
interviewing her that ‘‘he didn’t know what, to what extent
my involvement was in the Union, but he could assure me
that there would—that this would not be a union shop, that
the other plants . . . would be glad to have our work. . . .
that this would not be a union shop, that the doors would
close first.’’
Melton’s remark to Kincses in a private interview, ‘‘[I]f
anybody thinks that they are going to save their job or from
the plant closing down they won’t. . . . He said our work
would go there [Austin, Texas]. . . . if [the] union came
in.’’
The foregoing statements in derogation of employees’ Sec-
tion 7 rights (threats of plant closing, promises of benefits,
there will never be a union in the shop, removal of work if
the Union came in, there is no need for a union, that the
Union can do nothing for the employees, and the problems
could be resolved without a union), in the context used, were
in violation of Section 8(a)(1) of the Act.
‘‘It is the . . . tendency of employer statements, not their
actual effect, that constitutes a violation of the Act.’’ NLRB
v. Marine Optical, Inc., 671 F.2d 11, 18 (1st Cir. 1982). Ad-
ditionally, an attempt to denigrate the union violates Section
8(a)(1) because it conveys the position that it is futile to sup-
port or remain a member of the union. Albert Einstein Medi-
cal Center, 316 NLRB 1040 (1995).
A. Impressions of Surveillance
I do not find as claimed by the General Counsel that
Grasso’s reply to Dermody when she asked why everybody
now suddenly was interested in employees’ problems, i.e.
‘‘will [sic] it’s not what you think. Minnie was down before
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 ‘‘Under Board precedent, a prima facie case may be established
by the record as a whole and is not limited to evidence presented
by the General Counsel. . . . The Board’s precedent allows the
judge to analyze the prima facie case based on all record evidence.’’
Greco & Haines, Inc., 306 NLRB 634 (1992).
our meeting’’ (Dermody asked what meeting and Grasso an-
swered, ‘‘I’m not stupid’’), created an impression of surveil-
lance.
B. Interrogations
I find that the following interrogations in the context used
violate Section 8(a)(1) of the Act. See Rossmore House, 269
NLRB 1176 (1984).
Warren’s question to Buford while being interviewed by
Melton and Warren, ‘‘[A]re you or do you know of anyone
else that is involved in the union?’’
Warren’s admitted interrogation of Buford as to whether
she was aware that ‘‘there’s an organizing attempt going
on.’’
Warren’s question to Kincses, ‘‘[I]f there was a union
there, if we had an election, would I vote for it. . . . do you
think the majority would?’’
Melton’s question of Kincses in the private interview
about whether she had signed a ‘‘blue card . . . or if any-
body else had signed one.’’
C. The Discharges
In Wright Line, 251 NLRB 1083 (1980), the Board estab-
lished the rule that when the General Counsel makes a prima
facie case showing sufficient evidence to support the infer-
ence that protected conduct was the ‘‘motivating factor’’ in
the employer’s decision to discharge, the burden shifts to the
employer to demonstrate that the discharge would have taken
place even in the absence of the protected conduct.
‘‘The elements commonly required to support a prima
facie showing of discriminatory motivation under Section
8(a)(3) are union activity, employer knowledge, timing, and
employer animus.’’ Best Plumbing Supply, 310 NLRB 143
(1993). The General Counsel has met this test.
The General Counsel’s prima facie case showing discrimi-
natory motivation is supported by the following credible evi-
dence.20
1. The Respondent’s antiunion animus was of such an ada-
mant nature that the Respondent committed unfair labor
practices as a means of dissuading its employees from union
affection.
2. Although the Respondent dealt without serious labor
difficulties with the union in its other plants, it was moti-
vated by certain alleged economic and/or financial restraints
to keep the Union out of the Mishawaka plant.
Graham testified that Mishawaka’s fiberglass and horn op-
erations were ‘‘absolutely critical’’ to the Company’s oper-
ation because there are not dependable suppliers and they are
unique to the Company. Initially in order to recapture this
business the Company needed a lower labor cost. The work
was placed in Mishawaka’s nonunion shop because of lower
labor rates. According to Graham ‘‘there was just no way we
could do it with the labor—the labor structure’’ in Buchanan
or Newport.
Melton testified that competition can be effected by a
labor union. ‘‘I’ve seen it happen in plants where you can
drive work out because of the raise in prices and Mishawaka
has a very fine line in competitive products back there and
my concern was anything that might impact it would—would
be an issue.’’ (Emphasis added.) According to Melton,
Mishawaka is the most competitive plant. Graham apparently
expressed the Respondent’s apprehension of the advent of the
Union in these words: ‘‘[T]here is way too much invested
there to—to, uh . . . to let the plant go at the—the kind of
risk that we thought it was.’’
3. On learning of union activity the Respondent imme-
diately embarked on a counteroffensive sending Warren to
Mishawaka to interview individual employees and represent
to them that their complaints would be addressed.
(Graham learned of the union movement from Ressler;
Warren’s interviews with employees indicated that she knew
of union activity; Melton in his addresses to the employees
revealed that he knew about union activity. Through Weaver
Grasso learned of Buford’s role in the union organization and
that Weaver had signed a union card and attended a union
meeting. Warren’s and Melton’s remarks to and interrogation
of Buford and their singling her out for a dual interview indi-
cated that they were aware of her union affection and that
there was union organizing going on in the plant. Nash knew
of the union activities.)
The ‘‘small plant doctrine’’ line of cases is also applicable
here (Wiese Plow Welding Co., 123 NLRB 616 (1959)).
Such doctrine is not needed, however, to support a finding
of knowledge because there is no doubt the Respondent
knew of the discriminatees’ union activities at the time of the
discharges.
Persons unionwise (former union representative) and
plantwise in their personal interviews with the employees
would no doubt have been able to detect union affection.
4. The attendance policy which was used as a basis for the
dischargees was modified arbitrarily on July 7, 1994, to ac-
commodate the discharge of the discriminatees.
(Graham was asked what was so magical about the num-
ber seven. He replied, ‘‘Seven seemed to me, to be an exor-
bitant number.’’ ‘‘Q. All right. Well, why not six? A. Seven
occurred to me.’’)
5. Four employees were returned to work to limit the Re-
spondent’s liability.
6. None of the discriminatees had ever been warned that
they would be discharged for the offenses for which they
were discharged.
7. None of the discriminatees had been recommended for
discharge by any of their supervisors. (The discharges were
solely Graham’s affair.)
8. Graham, who solely caused the discharges, had little or
no information about the employees’ attendance records or
job performance.
9. All the discharged employees were union partisans.
10. The discharges of the employees were precipitous oc-
curring immediately after Graham learned of the union letter
requesting representation. None had been told they were sub-
jects of discharge or warned of that eventuality.
(Warren indicated that employees were generally warned
if they had attendance problems. Mitigating circumstances
were also considered.)
By reason of the General Counsel’s prima facie case, the
burden is with the Respondent to prove that the discharges
1111ELECTRO-VOICE, INC.
21 As stated on W. F. Bolin Co., 311 NLRB 1118, 1119 (1993):
Discriminatory motivation may reasonably be inferred from var-
ious factors, including an employer’s expressed hostility toward
protected activity together with its knowledge of the employee’s
protected activity. . . . An employer cannot simply present a le-
gitimate reason for its action but must persuade by a preponder-
ance of the evidence that the same action would have taken
place in the absence of the protected activity.
22 Graham supposedly received this ‘‘joke’’ version on which he
apparently heavily relied from his golf partner Ressler. How employ-
ees or Graham could have believed that the harsh administration of
the attendance policy that they were protesting and that had been so
unrelentlessly enforced, to a point when for several seconds’ tardi-
ness an employee received a point, was a joke is highly improbable.
23 It was stated in United States Rubber Co. v. NLRB, 384 F.2d
660, 662–663 (5th Cir. 1967). ‘‘Perhaps most damning is the fact
both [employees] were summarily discharged after reports of their
misconduct . . . without being given any opportunity to explain or
give their versions.’’
24 See Limestone Apparel Corp., 255 NLRB 722 (1981). ‘‘[A]
finding of pretext necessarily means that the reasons advanced by
the [Respondent] either did not exist or were not in fact relied upon,
thereby leaving intact the inference of wrongful motive established
by the General Counsel.’’
25 ‘‘[T]he ‘real motive’ of the employer in an alleged Section
8(a)(3) violation is decisive.’’ NLRB v. Brown Food Store, 380 U.S.
278, 287 (1965). ‘‘It is the ‘true purpose’ or ‘real motive’ in hiring
or firing that constitutes the test.’’ Teamsters Local 357 v. NLRB,
365 U.S. 667, 675 (1961). ‘‘Section 8(a)(3) prohibits discrimination
in regard to tenure or other conditions of employment to discourage
union membership. . . . It has long been established that a finding
of violation under this section will normally turn on the employer’s
motivation.’’ American Ship Building Co. v. NLRB, 380 U.S. 300,
311 (1965).
would have taken place even in the absence of the protected
conduct.21 The Respondent has not met this burden.
Graham testified why the employees were chosen for dis-
charge. ‘‘The one thing that we said that we wanted to ac-
complish, is that we wanted to get people serious about our
attendance policy, serious about our attendance policy, seri-
ous about coming to work every day, and being there when
they were supposed to be.’’ Graham further testified that the
discharges were based ‘‘solely on their excessive and chronic
absences. . . . with some additional information coming to
play with performance on at least three individuals.’’ Graham
deposed, ‘‘I told Minnie to be sure to tell the employees—
. . . that they were being discharged for excessive or chronic
absenteeism and tardiness.’’ Graham testified that he made
up his mind to discharge the employees when he looked at
the ‘‘summary of the absentee problem’’ and was also
moved because ‘‘our absentee problem was being viewed as
a joke.’’22
The Respondent has not established by credible evidence
that the attendance policy had ever been used to discharge
employees before to bolster attendance of employees or that
Graham was administering the policy as it had been adminis-
tered in the past.
In attempting to bolster Graham’s arbitrary action the Re-
spondent failed to consider that the alleged drop in produc-
tivity may have been due to the admitted ill treatment of the
employees and that the increase in productivity was due to
the rectification of employee complaints. Moreover, Graham
testified, ‘‘We didn’t need as many people as we were letting
go. We could do it with less people.’’ Additionally Nash was
present without a work assignment available to fill in for an
absent employee. Thus absenteeism apparently was not as
big a problem as it was blown up to be. Indeed, Graham tes-
tified that he ‘‘didn’t look at anything’’ prior to the meeting
to lead him to believe there was an absentee problem. In
fact, the credible evidence indicates that Graham looked at
nothing except a list of employees above noted. His action
was wholly arbitrary for the purpose of lopping off employ-
ees with union affection. Graham made no credible investiga-
tion of any employee’s conduct nor confronted any employee
with any alleged improprieties which apparently had been the
custom.23 The credible evidence establishes that Graham was
the sole mover in the discharges and that his action in this
regard occurred immediately after he had received the
Union’s recognition request letter.
All employees discharged were a part of the Respondent’s
scheme to thwart the employees’ organizational aspirations
and were victims of the Respondent’s thrust to kill union af-
fection and support in the Mishawaka plant. In this respect
the Respondent was successful.
Because of the foregoing, I conclude that the reasons ad-
vanced by the Respondent for the discharges of its employ-
ees were pretextuous,24 and the real motive for discharging25
the Respondent’s employees was discriminatory. The credible
evidence in this case sustains the General Counsel’s com-
plaint regarding the 8(a)(3) discharges by a preponderance of
the credible evidence. I am convinced that the discriminatees
would not have been discharged if they had not engaged in
protected union activities. Wright Line, supra. The Respond-
ent offered an implausible and false explanation for the dis-
charges.
I find that the Respondent’s discharging of its Mishawaka
employees, as detailed, violated Section 8(a)(3) and (1) of
the Act.
Although the credited evidence indicates that the Respond-
ent knew Buford was a union partisan, it is immaterial
whether specificity as to each dischargee’s union affection
must be proved as the General Counsel has shown that the
‘‘Respondent’s conduct was discriminatorily motivated
against all its employees.’’ Treanor Moving & Storage Co.,
311 NLRB 371 (1993). See also Davis Supermarkets, 306
NLRB 426 (1992).
V. ALLEGED VIOLATIONS OF SECTION 8(a)(5) OF THE ACT
‘‘In determining whether a bargaining order is appropriate,
in addition to examining the severity of the violations com-
mitted, the Board also examines the present effects of the co-
ercive unfair labor practices which would prevent the holding
of a fair election.’’ Bridgeway Oldsmobile, 281 NLRB 1246
(1986). In weighing a violation’s pervasiveness, relevant con-
siderations include ‘‘the number of employees directly ef-
fected by the violation, the size of the unit, the extent of dis-
semination among the work force, and the identity of the
perpetrator of the unfair labor practice.’’ Michigan Expedit-
ing Service, 282 NLRB 210, 211 (1986). See also NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969).
Here the unit was a small unit of less than 30 employees;
all were effected; a high official of the ‘‘umbrella’’ company
deliberately, personally, and unlawfully discharged nearly
one third of the labor force to discourage employees’ union
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
activities and affection. Such action could not avoid having
a lasting adverse impact on unit employees’ memories.
The atmosphere for a free and fair election was destroyed.
Here is little chance of a free choice of representatives with-
out a Gissel-type bargaining order. The Respondent’s grave
acts of misconduct struck at the core of the Union’s organi-
zational effort and destroyed any chance of union representa-
tion within the foreseeable future without a bargaining order.
Accordingly, a Gissel-type bargaining order is the only ap-
propriate remedy. It was the purpose of Gissel to correct this
kind of situation.
Because I find that the Union as of July 7, 1994, rep-
resented a majority of the Respondent’s employees in an ap-
propriate unit, I find that the Respondent, by refusing to rec-
ognize and bargain with the Union in the appropriate unit,
violated Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2) and (7) of the Act and
it will effectuate the purposes of the Act for jurisdiction to
be exercised.
2. The Union is a labor organization with the meaning of
Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees
in the exercise of rights guaranteed by Section 7 of the Act,
the Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By unlawfully discharging David E. Shaffer on July 5,
1994; Pamela J. Buford, Sherrie Elaine Mize, Jason Allen
Havens, Scott Kendall, Tracy Marie Bentley, Michelle Jo
Kincses on July 7, 1994; and Tracy Jean Dermody and De-
cember Ellen Barrows on July 8, 1994, the Respondent has
engaged in unfair labor practices within the meaning of Sec-
tion 8(a)(1) and (3) of the Act.
5. The Union represented an uncoerced majority of the Re-
spondent’s employees on July 7, 1994, is an appropriate unit
at the time the Union made a demand for collective-bargain-
ing representative.
The appropriate unit is all production and maintenance
workers, including maintenance and lead persons at the Em-
ployer’s facility in Mishawaka, Indiana; BUT EXCLUDING of-
fice clerical employees, professional employees, guards, and
supervisors as defined in the Act.
6. By refusing to recognize and bargain with the Union on
and after July 7, 1994, the Respondent violated Section
8(a)(5) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I recommend that it cease and desist
therefrom and take certain affirmative action designed to ef-
fectuate the policies of the Act. Having also found that the
Respondent unlawfully discharged Pamela J. Buford, David
E. Shaffer, Sherrie Elaine Mize, Jason Allen Havens, Decem-
ber Ellen Barrows, Scott Kendall, Tracy Marie Bentley,
Michelle Jo Kincses, and Tracy Jean Dermody, it is rec-
ommended that the Respondent remedy such unlawful con-
duct. In accordance with Board policy, it is recommended
that the Respondent offer the above-named persons imme-
diate and full reinstatement to their former positions or, if
such positions no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any rights or
privileges previously enjoyed, dismissing, if necessary, any
employees hired on or since the date of their discharges to
fill the positions, and make them whole for any loss of earn-
ings they may have suffered by reason of the Respondent’s
acts here detailed, by payment to them of a sum of money
equal to the amount they would have earned from the date
of their unlawful discharges to the date of valid offers of re-
instatement, less their net interim earnings during such peri-
ods, with interest thereon to be computed on a quarterly
basis in the manner established by the Board in F. W. Wool-
worth Co., 90 NLRB 289 (1950), and with interest to be
computed in the manner prescribed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
IT IS FURTHER RECOMMENDED that the Respondent recog-
nize and bargain with the Union as its employees’ collective-
bargaining representative in the unit found appropriate.
[Recommended Order omitted from publication.]