Federal Screw Works

National Labor Relations Board - Board Decisions

Apr 19, 1993

310 N.L.R.B. 1131 (N.L.R.B. 1993)

1131
310 NLRB No. 183
FEDERAL SCREW WORKS
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We also find without merit the Respondent’s allegations of bias
and prejudice on the part of the judge. On our full consideration of
the record and the decision, we perceive no evidence the judge pre-
judged the case, made prejudicial rulings, or demonstrated a bias
against the Respondent in his analysis or discussion of the evidence.
2 In adopting the judge’s conclusion that the Respondent violated
the Act regarding the seven named discriminatees, we find it unnec-
essary to pass on his discussion concerning whether the Respondent
may have violated any other Federal law or statute.
3 The judge stated that the discriminatees, who were unlawfully
evaluated, should be awarded $2000 which represents the lower
bonus payment. We decline to pass on the specific dollar amount,
but leave this issue to compliance. We conclude that the correct rem-
edy is to order the Respondent to make the discriminatees whole by
paying them what they would have been paid without the discrimi-
nation against them. We amend the remedy section of the judge’s
decision accordingly.
The Respondent excepts to the judge’s refusal to classify as in-
terim earnings the severance pay given to the terminated employees.
We find merit to the Respondent’s exception and shall modify the
recommended Order accordingly. See Sheller-Globe Corp., 296
NLRB 116 (1989).
Federal Screw Works and International Union,
United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW),
AFL–CIO. Case 7–CA–31379
April 19, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On May 14, 1992, Administrative Law Judge Rich-
ard H. Beddow Jr. issued the attached decision. The
Respondent filed exceptions and a supporting brief.
The General Counsel and the Charging Party each filed
an answering brief in response to the exceptions. The
Respondent then filed replies to the other parties’
briefs.
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-
clusions2 and to adopt the recommended Order as
modified.3
The Respondent excepts to the judge’s findings that
it unlawfully issued ‘‘poor’’ evaluations to 13 employ-
ees and then discharged or caused their employment to
terminate. We adopt his findings, which are fully sup-
ported by the credited evidence, but only with respect
to the seven employees actually named in the com-
plaint: Dan Durst, Jack Fike, Joe Hamilton, Larry
Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp.
We agree with the Respondent’s exception regarding
the other six employees. The record shows that the
charge allegations regarding these six were dismissed
on February 26, 1991, and thereafter the General
Counsel never sought to amend the outstanding com-
plaint to include these six allegations and never at-
tempted to revive or litigate them at the hearing. In
fact, in his brief to the judge, the General Counsel con-
sistently referred to the seven employees named in the
complaint as the discriminatees at issue and never indi-
cated that he sought to include any additional
discriminatees. Contrary to the judge’s erroneous find-
ing, the record clearly shows that the General Coun-
sel’s motion to conform the pleadings to the evidence
specifically addressed unrelated matters. Cf. Sonicraft,
Inc., 295 NLRB 766 (1989), enfd. 905 F.2d 146 (7th
Cir. 1990) (no denial of due process where the General
Counsel moved to amend the complaint to include al-
legations closely related to the outstanding timely filed
charge). In these circumstances, we find that the
8(a)(3) allegations involving Linda (Lucht) Bromlee,
John Lange, Tim Mills, Jack Pfaff, David Schied, and
Don Sims are barred by Section 10(b) of the Act and
are not properly before the Board for determination on
the merits. Accordingly, we shall modify the Order to
delete any reference to employees Bromlee, Lange,
Mills, Pfaff, Schied, and Sims.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Fed-
eral Screw Works, Big Rapids, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Insert the following as paragraphs 2(a) and (b)
and reletter the subsequent paragraphs.
‘‘(a) Offer Dan Durst, Jack Fike, Joe Hamilton,
Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron
Sharp immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
‘‘(b) Make Dan Durst, Jack Fike, Joe Hamilton,
Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron
Sharp 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; provided that such amounts shall be offset by
the amounts of the severance payments that these indi-
vidual employees received, to the extent that such
backpay amounts exceed the severance payments; pro-
vided further that those employees not entitled to back-
pay shall retain the severance payments they re-
ceived.’’
1132 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 All following dates are in 1990, unless otherwise indicated.
2 The Charging Party’s motion to correct the record dated January
24, 1992, is granted and received into evidence as C.P. Exh. 2.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT issue ‘‘poor’’ evaluations and dis-
charge or otherwise cause the termination of any em-
ployees because of activity protected by Section 7 of
the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Dan Durst, Jack Fike, Joe Hamilton,
Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron
Sharp immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their senior-
ity or any other rights or privileges previously enjoyed.
WE WILL make Dan Durst, Jack Fike, Joe Hamilton,
Larry Hinsley, Bill Jones, Vaughn Schoen, and Ron
Sharp whole for any loss of earnings and other benefits
resulting from their terminations, less net interim earn-
ings, plus interest. Such amounts shall be offset by the
amounts of the severance payments that these indi-
vidual employees received, to the extent that such
backpay amounts exceed the severance payments; pro-
vided further that those employees not entitled to back-
pay shall retain the severance payments they received.
WE WILL expunge from our files any reference to
their unlawful terminations and their underlying eval-
uations and notify them in writing that this has been
done and that evidence of the unlawful discharge and
evaluation will not be used as a basis for future per-
sonnel actions against them.
FEDERAL SCREW WORKS
Joseph P. Canfield, Esq. and Sherrie E. Voyles, Esq., for the
General Counsel.
Frank S. Galgan, Esq., of Troy, Michigan, for the Respond-
ent.
Nancy Schiffer, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
RICHARD H. BEDDOW, JR., Administrative Law Judge.
This matter was heard in Big Rapids, Michigan, on June 17–
21 and September 16–19, 1991. Subsequent to several exten-
sions of the filing date, briefs were filed by all parties. The
proceeding is based on the charge filed January 9, 1991,1 by
the International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), AFL–
CIO. The Regional Director’s complaint dated February 28,
1991, alleges that Respondent, Federal Screw Works, of Big
Rapids, Michigan, violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act by issuing written evaluation rat-
ings of ‘‘poor’’ to seven named employees and then dis-
charging them or causing their termination because of their
union or other protected concerted activities.
On a review of the entire record2 in this case and from
my observation of the witnesses and their demeanor, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is engaged in the manufacture, distribution,
and sale of fasteners for the automotive industry. It annually
ships goods valued in excess of $50,000 from its Big Rapids
location to points outside Michigan and it admits that at all
times material is has been an employer engaged in operations
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act. It also admits that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent has operated a manufacturing facility in Big
Rapids since about 1976, and currently employees approxi-
mately 100 production employees. It has other, older facili-
ties at Chelsea and Romulus, Michigan, that have been rep-
resented by the Union for decades and it has a 4-year-old
Brighton, Michigan facility where the employees are unrepre-
sented. The employees at the involved Big Rapids facility
voted to be represented by the Union in December 1987. The
Union, through its International Representative Dennis
Vanderlind, requested bargaining on January 4, 1988, but re-
ceived no immediate response from the Company.
In January 1988, after the Union had won the election,
Tom ZurSchmiede became general manager of the Big Rap-
ids facility. ZurSchmiede is a vice president and a member
of its board of directors and of the principal owner’s family.
Prior to his move to Big Rapids, he was in charge of Re-
spondent’s Chelsea and Brighton divisions, supervising their
general managers, and he had rarely visited Big Rapids.
1133FEDERAL SCREW WORKS
At the time of the election, the Big Rapids facility was su-
pervised by General Manager Jack Marsh. Respondent agrees
that Marsh, who was hired to reverse the financial losses
being experienced in Big Rapids, was an arbitrary and abu-
sive manager and it attributes his management style to being
the cause of employee dissatisfaction.
In 1987, ZurSchmiede was involved in contract negotia-
tions at Romulus and he assumed the role of principal and
only company negotiatior when negotiations began with the
Union at Big Rapids after he became general manager. In ad-
dition to problems with apparent employee discontent, the
Big Rapids facility was not profitable and ZurSchmiede es-
tablished a goal for himself to turn things around in 6
months.
ZurSchmiede gave a speech to the employees, announced
that he had terminated Marsh, and spoke about a program of
cooperative management. Among other things, he also an-
nounced that all reprimands (other than safety violations and
insubordination) were being removed from the employees’
files. This amnesty announcement was subsequently repeated.
In response to ZurSchmiede’s request, the Union supported
increased productivity on a new project for Honda. Union
Representative Vanderlind also spoke at the same meeting
and urged the employees to be cooperative with manage-
ment. Thereafter, by letter of March 28, 1988, the Union
gave Respondent a ‘‘no strike’’ commitment to assist the
Company in assuring its business relations with Ford Motor
Company.
During the first 9 months of 1988, the parties engaged in
approximately 15 bargaining sessions. In addition to
Vanderlind, the Union’s bargaining committee was composed
of Chairperson Jack Fike and committee members Ron
Sharp, William Jones, and Leon Saladin (who resigned dur-
ing the latter part of negotiations and was replaced by Bruce
Kennedy, who announced his resignation just prior to the de-
certification vote, during a general employee meeting).
The seeming progress of negotiations began to stall in
mid- to late-1988, and Vanderlind advised ZurSchmiede in
an away-from-the-table discussion that if he had to, he would
strike to reach an agreement. ZurSchmiede replied that his
response would be to sign a contract, then close the plant
and move to Indiana.
On October 13, 1988, the Employer presented a final offer
entitled ‘‘Big Rapids Division Labor Proposal.’’ This was
described by ZurSchmiede as a ‘‘tentative agreement.’’ How-
ever, Vanderlind considered it to be merely a draft of the
Company’s final offer. Although it did contain provisions
which the parties had previously agreed on, it also contained
work rules and a disciplinary scheme and also included wage
reductions and a bonus system that was never negotiated
with the Union.
The proposal also contained 17 work rules and a discipli-
nary program never negotiated. It describes certain offenses
that would result in immediate discharge; however, a pro-
gressive disciplinary scheme is established for ‘‘loafing’’;
‘‘production of a major amount of scrap material or material
requiring rework or repair’’; and ‘‘horseplay’’ as it relates to
wasting time. For these offenses, the proposal envisions first
a written warning, then a 3-day disciplinary layoff, then a 5-
day suspension, and for the fourth offense, discharge. These
rules are similar to those in the Company’s 1985 handbook.
No rules prohibit such things as profanity, inappropriate so-
cial conduct, an uncooperative attitude, or lack of commit-
ment.
At the time this final offer was presented to the Union, a
decertification movement had begun at the plant and
Vanderlind declined to submit the offer to the employees for
a ratification vote because it contained proposed wage reduc-
tion from the preunion rate. Thereafter, between two and four
additional bargaining meetings were held with no movement
in the wage proposal.
The decertification petition was filed on December 20,
1988, and dismissed on January 3, 1989, as untimely. A sec-
ond petition was filed on January 9, 1989. It was delayed by
pending unfair labor practice charges until November 8,
1989, when an NLRB election was conducted. The election
resulted in 81 votes against the Union and only 13 votes in
favor of representation. A Certification of Results followed.
Prior to the decertification election, ZurSchmiede con-
ducted several management meetings in which supervisors
were ‘‘straw polled’’ about which of their employees sup-
ported the Union. James Jones, who was maintenance super-
visor between 1988 and 1990, testified that he attended ap-
proximately six management meetings in advance of the de-
certification election where specific employees’ union sym-
pathies were discussed. These meetings were attended by Su-
pervisors Dennis Love, production control; Carmen Bean,
area manager; Dale Weeks, manufacturing manager; Donna
Panetta (French), human resources manager; Dave Ayriss,
plant manager; Linda Cruz, personnel supervisor; Jeffrey
Blackmer, quality manager; and ZurSchmiede.
ZurSchmiede, Ayriss, and Bean lead the meetings. Among
employees identified as prounion for the decertification vote
were Dan Durst, Dan Golgolowoski, Jack Fike, Joe Ham-
ilton, Debra Becker, Bill Jones, Butch Schoen, John Lange,
David Schied, Larry Hinsley, and Ron Sharp. Some others
were singled out as antiunion including Bud Spaugh, Todd
Peck, Doug Sarns, Rick Lloyd, Stan Bushre, and Dave Yost.
ZurSchmiede indicated that the Company wanted a union de-
feat in the decertification election and Jones testified that ei-
ther ZurSchmiede or Aryiss stated that union supporters
would be ‘‘dealt with when the time come [sic].’’
Curt Smith, a supervisor of secondary operations between
early 1986 and February 1989, confirmed that straw polls at
management meetings were conducted and that Zurschmiede
brought up the issue of employees’ union sympathies by ask-
ing supervisors to get a feel for employees’ intentions about
the decertification vote. He recalled that specific prounion
employees identified were Dave Smitterberg, Sharp, Durst,
Schoen, Fike, and Jones.
Warren Hunter was engineering and quality manager from
July 1988, until he left on March 9, 1990. He corroborated
the fact that, at management meetings in advance of the de-
certification election, ZurSchmiede questioned supervisors
about which employees were prounion and antiunion, and he
recalled that those identified at the meetings as prounion
were Fike, Durst, Hamilton, Hinsley, Schoen, Becker, Dan
Sims, Linda Luchts, Sharp, and Jones. Strongly antiunion
employees were Todd Peck, Randy Spedoske, Dan Hover,
Rick Lloyd, Doug Sarns, Bud Spaugh, Joe Steinberg,
Shortsle, and Glazier. Based on these meetings, Hunter pre-
dicted to the other supervisors that only 13 employees would
vote for the Union. Subsequently, in March or April 1990,
employee Tim Mills observed a list of 13 names on
1134 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ZurSchmiede’s desk which included Hamilton, Pfaff, Fike,
Durst, Sharp, Sims, Hinsley, Jones, Luchts, and Schoen.
Bean and ZurSchmiede each testified that management’s
new cooperative policy worked successfully but engendered
some employee complaints about persons who were not
doing their fair share. ZurSchmiede also testified that he had
daily meetings with managers and on a number of occasions
they informally discussed the need to do employee evalua-
tions. ‘‘Sometime’’ in 1990, ZurSchmiede instructed Donna
Panetta, human resources manager, to form an evaluation
work group. Her selection of five employees, Linda Cruz,
Joe Steinberg, Cathy, Witzke, Bud Spaugh, and Rich Lloyd,
was submitted to and approved by Ayriss and ZurSchmiede.
Of these, Steinberg, Spaugh, and Lloyd had been identified
in management meetings, which Panetta attended, as strongly
antiunion; Cruz is the Employer’s personnel supervisor.
The establishment of the evaluation criteria is presented by
the Respondent as an accomplishment of the initial work
group; however, ZurSchmiede testified that ‘‘We had talked
about these things over and over and over and none of these
ideas was in any way new. Their accomplishment, I think,
was in putting it into an understandable sort of code or cri-
teria.’’
Panetta, who has completed a year toward an MBA and
has several years’ experience with state, Federal, and private
labor and employment organizations, testified that she was
hired to establish and implement employee involvement pro-
grams within the concept of a workplace, sense of commu-
nity, and family working together where ‘‘if one thing was
good for one person, it was always good for all employees.’’
She was present at all meetings of the group and said her
role was that of a ‘‘facilitator’’ who tried to keep the group
‘‘on track.’’ As an example of how Panetta ‘‘facilitated’’ the
functions of another work group, employee Debbie Becker
testified that Panetta would give them examples to work with
and sometimes would tell them that what they were coming
up with was not what ZurSchmiede had in mind. Shortly be-
fore evaluations began, the original employee work group
was then expanded to include Tony Ottobre, Phil Shortsle,
Doug Sarns, Todd Peck, Dave Yost, and Stan Bushre. They
reviewed the evaluation form presented by the initial group
and came up with some ‘‘minor revisions.’’ None of the
members of this group were union supporters during the de-
certification petition but, in fact, were named in the manage-
ment meeting preceding the decertification vote as being
against the Union.
Members of management were also formed into a ‘‘staff
group’’ consisting of Panetta, Carmen Bean, Jeff Blackmer,
and Dale Weeks. This group, followed by Ayriss and
ZurSchmiede, reviewed and approved the final evaluation
form. The management staff group then performed the initial
evaluations of the employees. The employee’s immediate su-
pervisor was not consulted regarding the evaluation and an
employee would not necessarily be rated by his supervisor
even if the supervisor was on the management staff com-
mittee.
The evaluation was divided into six subsections specifi-
cally entitled: ‘‘commitment, cooperation, mutal respect and
trust, willingness to improve as part of a group, sense of ur-
gency, and specific job capability improvement.’’ The results
for each subsection were determined by the answers to the
majority of questions within that subsection. The subsection
on ‘‘commitment’’ was considered the ‘‘most important.’’ A
space for rating of ‘‘outstanding,’’ ‘‘good,’’ or ‘‘poor’’ was
provided in response to each question, as well as several
lines for comments; however, these lines were often not
filled in.
This initial evaluation was then given to the employee
work group for review. Panetta acted as facilitator or leader
at these meetings and described the process as employees
reaching a ‘‘consensus’’ on each evaluation.
Employee Douglas Sarns testified that the role of the em-
ployee committee in the evaluation process was to review the
already completed evaluations and voice agreement or dis-
agreement as they were passed around the group by Panetta.
If the employee and management disagreed, the evaluation
was completed anew by the management committee, then re-
submitted to the employee group.
Originally, the management staff group rated 13 people as
‘‘poor,’’ including Jack Fike, Dan Durst, Vaughn Schoen,
Ron Lange, Roy Yarbrough, Gordy Ellis, and Al Scott. The
employee group upgraded Scott and Ellis, but concurred that
the other 11 employees should receive ‘‘poor’’ evaluations.
The employee group then added Sharlene Boerma, Dick Gla-
zier, Linda Bromlee (Lucht), David Schied, Tim Mills,
George Traver, Dale Mitchell, Lou Dillinger, Dan Clarry,
Dave Sandlin, and Ben Chupp as employees who should be
rated ‘‘poor.’’
The two groups then met to reconcile their lists and de-
cided on the final listings based on a consensus, in which ev-
eryone indicated agreement. The joint review resulted in 16
employees being rated ‘‘poor.’’ This includes those added by
the employee group excluding Traver, Mitchell, Dellinger,
Clary, Sandlin, and Chupp who stayed ‘‘Good,’’ as initially
rated by the mangement group.
The management group met individually with each
‘‘poor’’ employee on August 21 (August 22 for Schied), and
then on two subsequent occasions. Bean testified ‘‘not a lot
of detail’’ was given to employees about the content of their
evaluation at the initial confrontation. After their initial meet-
ing with the management group, each employee was escorted
to a meeting with Plant Manager Dave Ayriss.
Some employees testified that ZurSchmiede had mentioned
an evaluation system at an employee meeting but could not
recall when that occurred. Most employees learned of the
evaluation process via rumors just prior to the announcement
of the evaluation results in August 1990, and then at a gen-
eral meeting on August 22.
ZurSchmiede called a general employee meeting on Au-
gust 22, and explained the evaluation process, and described
a 30-day correctional period. He said he was ‘‘dead serious’’
about the possibility of discharge for the poorly rated em-
ployees. ZurSchmiede told employees that those who had not
yet received their evaluation forms had been ranked ‘‘good’’
or ‘‘outstanding’’ and would receive bonuses of $2000 and
$3000 respectively. ‘‘Poors’’ would receive nothing because
they had refused to enter into the family or to cooperate with
their coworkers. Zurschmiede then said he was offering those
who had recieved poor evaluations 3 months’ severance and
it was his advice to them that they take it, because they
would not make it back at the end of the 30-day grace pe-
riod. He said that at the end of 30 days, the offer would be
retracted. ZurSchmiede added that if the employees had not
been able to turn themselves around in 2 years, they would
1135FEDERAL SCREW WORKS
never be able to do it in the 30 days and they might as well
take the money and go. ZurSchmiede said it was ‘‘their own
damn fault’’ and then said that some might ask why he was
giving these people severance money, but that was because
even bad people had good families.
Plant Manager Ayriss, who had authority to negotiate sep-
aration terms, met with every ‘‘poor’’ rated employee to re-
inforce the severity of the process and present their options.
Three ‘‘poor’’ employees, Lucht (Brownlee), Pfaff, and
Lange, promptly opted for termination with a separation
agreement.
The seven ‘‘poor’’ employees discussed below initially at-
tempted to dispute their evaluations and then attempted to
improve during the grace period. Hamilton, Hinsley, Jones,
Schoen, and Sharp thereafter relented after becoming dis-
couraged in their efforts and they each entered into a separa-
tion agreement. Both Fike and Durst held out for 30 days
and were terminated, but the Respondent then encouraged
them to enter into a separation agreement and the termination
papers were torn up.
After the evaluations were publicized, employee Debra
Becker requested a meeting with Ayriss and complained that
the evaluation process was unfair. Ayriss became angry and
started shouting. When Becker suggested the severance offer
be made to the whole shop, Ayriss asked her if she would
take it, and then asked how many employees would leave
and who were they. She estimated 10 to 12, but refused to
identify particular employees. Later, Aryiss offered Becker a
severance package, which she accepted.
No attempt was made to show that these separations were
for economic reasons and, otherwise, it appears that at this
time the plant was operating shorthanded and some employ-
ees were working overtime.
The seven employees who are the primary subject of this
proceeding are shown on the record to have been ordinary
employees in most respects but with stronger than average
work skills, colored by some idiosyncrasy or distinctive per-
sonality characteristic. The other common thread is their
strong personal integrity and their connection to the Union.
Jack Fike was a machine repairman from 1976 until 1990.
He received compliments for his work from Price, Weeks,
and ZurSchmiede. He received only one writeup, 12 years
ago. Fike was one of the primary union activists in the plant
both duing the original organizing campaign and after the
Union was certified, when he was elected to and served on
the bargaining committee. He also served as the Union’s ob-
server at the decertification election. Prior to that vote, Fike
was asked by Weeks and ZurSchmiede whether he believed
that a union was still needed and earlier, during negotiations,
ZurSchmiede once told Fike that part of the reason the Com-
pany moved away from Detroit was because of the Union
and that he would move the plant again.
Fike’s ‘‘poor’’ evaluation accused him of being ‘‘ob-
struct’’ [sic] and ‘‘uncooperative,’’ ‘‘wasting time,’’ ‘‘trying
to undermine the operation of the plant by verbally knocking
down policies,’’ ‘‘constant verbal downgrading of plant func-
tions,’’ ‘‘destructive of the community,’’ and working to
‘‘undermine the foundation of the plant community.’’ No
specific examples were offered to illustrate these comments.
After Fike read it, he asked the management group for spe-
cific examples of things he had done to deserve the poor rat-
ing. He was told they could not provide specifics but added
that he could quit and receive a severance or try to correct
the problems within 30 days. Fike said he would would like
to attempt change and was sent to see Ayriss. Fike asked
Ayriss for specific examples and explanations for his
‘‘poors.’’ Ayriss responded that if Fike could not see what
he was doing wrong he should take the severance because
the offer would not be there in 30 days.
Fike then talked to Bushre and Peck, both of whom were
on the employee evaluation committee. Bushre said the eval-
uations were made up by ZurSchmiede and Ayriss to come
out a certain way and the committee could not change them.
Peck suggested that Fike apologize to ZurSchmiede for his
union activity. Both said Fike was a good worker as did
other committee members Yost and Spaugh. Letavich, a su-
pervisor, told Fike he was the best machine repairman the
Company ever had.
On August 28, Fike visited Bean at his home and said he
wanted to change. Bean told Fike to be more serious at work
and that he thought Fike could turn it around. Fike met with
Weeks on August 29 to ask him what he could do to correct
the problems. Weeks said they would talk about it in 2
weeks. At that time Fike was given additional guidelines that
were critical of his ‘‘cooperation.’’ Fike told Weeks the
guidelines were not helpful. Weeks replied that he did not
think Fike could correct his problems, and should see Ayriss
about a severance agreement.
Fike met with ZurSchmiede on September 10 and told him
he was sorry for anything he said to the evaluation commit-
tee. ZurSchmiede said he should apologize to the committee
himself. On September 11, Fike met with Weeks, French,
and Blackmer and gave them a corrective action evaluation
letter apologizing for anything that was said or done to the
evaluation committee. At this time Fike was given a written
evaluation which stated that he was ‘‘still trying to find fault
with the evaluation process. You don’t accept the construc-
tive criticism that was offered in the evaluation and therefore
are not working hard to correct the problems.’’
He also was criticized for voluntarily working overtime to
finish a repair after his supervisor had told him he wouldn’t
get paid for it, because it showed noncommitment to the
plant community (apparently by seeking overtime work).
After this meeting, Fike met with Ayriss and expressed his
confusion over the 2-week evaluation saying he had not been
told what he was doing wrong, but had only received further
criticisms. Ayriss answered that if he couldn’t admit he had
a problem, then he really had a problem and again urged him
to think about the severance offer.
Fike’s wife, Darlene, then met with Ayriss to ask how
Fike could retain his job. Ayriss reiterated that Fike had to
exhibit commitment, cooperation, and respect and not play
pranks on employees.
On September 25, Fike’s birthday, he was called into
Ayriss’ office informed that things did not look good, and
asked if he wanted to talk about a severance. Fike said he
wanted to see what the committee had to say.
When Fike met with the committee, Weeks told him that
his 30 days were up and that it was their opinion that he had
made no effort to improve or show any improvement at all.
Weeks, specifically stated that Fike was seen working on two
different occasions past his scheduled shift, which supported
the conclusion that he was a poor employee. At the hearing
Fike explained that on both of these occasions he had noti-
1136 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fied his supervisor that he needed to stay over to finish a job.
When told by his supervisor, Darrel Price, that the Company
could not pay overtime, Fike said it was okay and worked
over anyway. When Fike asked them for examples of what
he didn’t do that he should have. No one answered him.
Weeks then told Fike he was being released.
Fike again met with Dave Ayriss and signed a termination
agreement. After signing this document, Ayriss told Fike he
could resign instead of being fired and get a separation
agreement. Fike asked Ayriss if he could take the written set-
tlement agreement to a lawyer but Ayriss declined and went
on to say that if Fike didn’t take the settlement he would
have a hard time getting a job in Big Rapids as it was a
small town and that he had a nice wife and family and he
should think about them.
Fike agreed to terms, signed the settlement agreement, and
left the plant. Later, when Fike returned with Dan Durst, to
retrieve their tools, Bernie Letavich stated he didn’t under-
stand why the Company was firing the two best repairmen
they had.
At the hearing Respondent’s witnesses gave additional,
specific reasons for Fike’s ‘‘poor’’ evaluation. According to
Bean, Fike was guilty of too many practical jokes and was
the sole nonparticipant at department meetings. Employee
Douglas Sarns accused Fike of putting his (Fike’s) name on
Sarn’s tools, interfering with another employee’s lunch, and
encouraging employee Tim Mills to make sexually offensive
remarks to the women who worked in the office.
Other allegedly objectionable practical jokes were attrib-
uted to Fike including hiding employees’ toolboxes and slid-
ing his own toolbox in front of employee Anthony Ottobre’s
forklift truck about 20 to 30 times, including 4 days before
Fike lost his job. Ottobre also claimed Fike ‘‘or maybe Gla-
zier’’ put water on his forklift as a joke. Fike denied any
pranks involving his toolbox, explaning that his tools are
worth approximately $2000 and his toolbox weighs 900
pounds and is difficult to maneuver.
At the hearing, Fike produced tools with his name perma-
nently engraved in them and Sarns’ initials hastily scratched
on them and stated that this type of ‘‘exchange’’ of tools was
not uncommon in the plant. Fike explained that he had been
the brunt of one missing lunch joke, and numerous witnesses
testified to a variety of practical jokes engaged in by employ-
ees. Charles Everloch, former plant facility engineer and
shipping and receiving supervisor in 1988–1989, testified that
Fike always did a good job and would never jeopardize
equipment. Everloch rated Fike as a ‘‘real good’’ repairman,
‘‘very knowledgeable.’’ Warren Hunter, former engineering
manager, corroborated that Fike was a good employee.
Fike’s supervisor, Darrell Price, testified that Fike contin-
ually attempted to record his actual working hours instead of
just 8 hours each day. No overtime pay was allowed then,
according to Price, who claimed Fike was not really working
overtime because employees were expected to work 32 hours
per week and to get paid for 40 hours regardless of whether
they worked 32 or 40 hours. Fike however, testified that he
volunteered and worked in excess of 40 hours (not 32) with-
out overtime pay, for a total of 30-1/2 unrecorded hours in
excess of 40 hours in various weeks. Otherwise, Fike had a
perfect attendance and tardiness record.
Larry Hinsley started with the Company in 1977 as a jan-
itor, moved to utility, then to quarter packer, and for the last
8 years was quarter packer leader. He was hired under a vo-
cational rehabilitation program whereby the State paid one-
half of his wages for 6 months. He had been considered to
be retarded until he was 18 and it was discovered that he
suffered from hearing and speech defects as well as a nerv-
ous condition. He reads at a 6th to 7th grade level and has
been sick on occasion but otherwise has not been absent. He
has never received any writeups from his direct supervisor
and on occasion has received compliments about his work.
Hinsley was a vocal supporter of the Union and wore a
UAW T-shirt and hat. My evaluation of Hinsley’s appear-
ance and demeanor reflect a somewhat ‘‘eccentric’’ person-
ality colored by his hearing and speech problems and man-
nerisms that appear to reflect his attempts to mask these
problems.
Hinsley was given a ‘‘poor’’ evaluation on August 21.
Dale Weeks handed Hinsley a letter and said the letter would
explain how the evaluation was done. Hinsley read the letter
and said he did not understand what it meant. He then read
the evaluation. Many of the comments on Hinsley’s evalua-
tion repeat the same criticism that he paces himself to do
‘‘minimal’’ work. He also was criticized for ‘‘trying to tear
down the plant community, not respecting fellow employees
and lacking committment.’’ No specific conduct is cited.
While reading the evaluation, Hinsley became increasingly
upset and said he did not understand parts of the evaluation,
and why he received so many ‘‘poors.’’
Weeks told Hinsley that he didn’t think that he would
make it and Hinsley asked the committee why his foreman,
Denny Love, had not evaluated him, as he was the most fa-
miliar with his work. They answered that Love wouldn’t
have given him a fair evaluation but the committee would.
Hinsley said that he wanted a chance to try and turn his per-
formance around. Weeks said that he was so poor that it was
unlikely, then told him to see Ayriss.
Hinsley was upset and emotional but told Ayriss he would
do his best to improve and asked for guidance on how to do
that. Ayriss said he did not know what Hinsley should do
and that he would be better off taking the severance. Ayriss
said Hinsley should think about the offer overnight. The next
day Hinsley told Ayriss he thought the evaluation was unfair,
however, Ayriss replied that he did not care about what
Hinsley thought and told him to talk to Weeks.
Hinsley received a followup letter, that gave him no guid-
ance on how or what to improve, however, Panetta told
Hinsley he had to become committed to the plant community
and to stop using his handicap as an excuse for not partici-
pating in group meetings.
After receiving his evaluation, Hinsley started attending
nonmandatory meetings, he asked to join a new work group
(but was told it was full even though it had been announced
only the previous day), he came in early to set things up so
his group was more efficient, and he worked unpaid over-
time. Hinsley then went back to Ayriss to see if he would
be allowed to stay. After after Ayriss said he didn’t think so,
they began to negotiate a severance agreement. Ayriss agreed
that Hinsley was emotional and was convinced he would be
terminated but said a severance of 3 months’ pay wasn’t
enough for his car payment and asked for a year. After some
give and take Ayriss agreed to give Hinsley 9 months’ sever-
ance pay, 4 weeks’ vacation pay, and 6 months’ insurance.
1137FEDERAL SCREW WORKS
Carmen Bean testified that he concurred with others who
rated Hinsley as ‘‘poor’’ because Hinsley refused to do
things a packer leadman should do and because he caused
friction with his counterpart on the other shift. Bean said he
discussed the problem with Hinsley without success, how-
ever, no discussions were recorded in Hinsley’s personnel
file and no other action was taken. Employee Bushre claimed
Hinsley worked slowly and took the easy jobs. Hinsley, how-
ever, never was disciplined or removed from his leader posi-
tion as a result of these alleged deficiencies. In fact, in 1989,
he was sent to take a processing control course and received
a certificate of completion (but testified that he had copied
a lot of answers on the test). Bean also criticized Hinsley for
preparing shipping labels ahead of time. Hinsley does not
dispute this, but testified that he was working according to
his supervisor’s instructions. He also testified that his shift
regularly exceeded their packaging goal of 800 boxes a day.
Hinsley also described how he was made the butt of jokes
by both other employees and supervisors. For example, Su-
pervisor Love put a lit cigarette in Hinsley pocket (which re-
sulted in a burn blister), and laughed when Hinsley slapped
at it and thought it was a bee sting. Tony Ottobre (an evalua-
tion committee member), was identified as a habitual joker
who would do such things as unpluging Hinsley’s machine
when it was running labels. Ottobre, as well as Rick Lloyd
(also an evaluation committee member), Dick Glazier, and
others also mocked Hinsley’s speech mannerisms and his
hearing, repeatedly telling him to ‘‘get the rag out’’ of his
ear.
Ottobre, Glazier, Lloyd, and Bean, among others, also ha-
bitually teased employee Tim Mills about his speech impedi-
ment and lack of sexual experience in specific terms, often
linking the two by statement such as ‘‘if you get some [sex]
your speech will be better.’’ Mills denied that Fike ever sug-
gested that he go to the office girls with a sexual remark but
testified that he had done so at the urging of employees Bud
Spaugh and Tom Marek. Mills added that, although Fike also
talked to him about sex and stuff, it was in a serious way
because he did not know a lot and he asked Fike questions
because Fike was someone who wouldn’t laugh at him.
Mills is younger than most of the other employees and he
had a severe speech impediment. His testimony and de-
meanor demonstrate that he is functional but also moderately
retarded and naive. He was a janitor at the Company be-
tween 1986 and 1990 and an excellent worker, but was de-
scribed by one company witness as having the mentality of
a 10 year old.
As the result of the suggestions by Spaugh and Marek,
Mills did make suggestive remarks to the office girls who
then complained to Manager Panetta who subsequently told
Mills at his evaluation meeting about his obnoxious speech
to women. Mills was not one of the original ‘‘poor’’
evaluees but his name was added by the employee group.
Mills resigned after being given this evaluation and his sepa-
ration was not alleged as a violation of the Act in these spe-
cific proceedings. Respondent otherwise was aware of Mills’
handicaps when he was hired. Employee Sarns, a plant elec-
trician and former janitor (who was called as Respondent’s
witness), described Mills as ‘‘very honest’’ and said the shop
was never as clean since he has left as what it was when
he was there. Sarns testified that Mills did excellent work,
but indiscriminately took everybody’s advice when it came
to how to act.
Mills testified that ‘‘everybody’’ made sexually suggestive
remarks to him. When he was asked on cross-examination by
Respondent’s counsel ‘‘when’’ employees said these things
to him, he answered:
A. Everyday on the hour, every hour, every minute,
every second I walked in. I got sworn at, cussed at,
thrown shit on me.
Q. When did it start?
A. When I went out, you know—they got to know
me more and it began more and more.
Mills was not called by the General Counsel in the presen-
tation of his direct case, although counsel had knowledge of
the information that Mills then gave when called as a rebuttal
witness. Accordingly, when Respondent objected to Mills
testifying about an observation he made when he was clean-
ing in ZurSchmiede’s office, I sustained the objection. The
General Counsel made an offer of proof (in question and an-
swer form), in which Mills testified that in April or March
1990, he had seen a list of 13 names on ZurSchmiede’s desk.
He remembered most of the names without assistance and
otherwise confirmed that all 13 names listed were those who
thereafter got poor evaluations. When asked by Respondent’s
Counsel if he was sure it was in April. Mills responded he
was sure because it was window washing time and April or
March was when he washed windows.
Under all these circumstances, I find that Mills’ testimony
is highly honest and credible and helpful to the record. It ap-
pears that the General Counsel was reluctant to initially use
Mills’ testimony because of his perceived disabilities, how-
ever, I find that they do not detract from the credibility or
reliability of his testimony and I therefore reverse my ruling
sustaining of Respondent’s objection and I accept the testi-
mony disclosed in the offer of proof as credible evidence.
Employees Durst, Hamilton, Jones, Schoen, and Sharp
were all skilled, long-term employees (Hamilton started in
1976 and all the others have been with the Respondent since
at least 1979). Durst was a skilled journeyman repairman
who participated in a work group in which he raised the
issue with Panetta concerning the possibility that they were
infringing on a subject of bargaining (this position subse-
quently was recognized as correct). He also made attempts
to record his actual hours worked (when he was working un-
paid, volunteered overtime), that were disallowed. Hamilton
was successively a floor inspector, final inspector, and chief
inspector and received only one work-related writeup, 10
years ago. When Hamilton became active in early union or-
ganizational activities he was instructed to stay in his work
area. Thereafter, ZurSchmiede spoke specifically to him prior
to the decertification vote and suggested to him that the
Union was unnecessary.
Jones started as a floor inspector and was made a final in-
spector. He had no record of discipline and he was recog-
nized for having 10 years of perfect attendance. He also was
on the bargaining committee and wore a union shirt at work
prior to the decertification vote. Schoen was a boltmaker
who was complimented for his work by three different super-
visors and told that he produced more bolts than anyone. He
wore union parafanalia and was questioned by Bean about
1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Bowman and Jones denied any agreement but after Bowman tes-
tified at the hearing, Schoen commented to him: ‘‘How soon we for-
get’’; to which Bowman responded: ‘‘You do what you gotta do to
keep your job.’’ This conversation was corroborated by Becky Durst.
his union support and the identity of other supporters. Sharp
was a setup operator who became a boltmaker, and once was
complimented by Weeks as the best ‘‘outfitter’’ the Com-
pany had. He also received a bonus and gift for 5 years of
perfect attendance. He was on the bargaining committee until
the decertification of the Union.
Each of these employees was rated ‘‘poor’’ and experi-
enced the same general series of events regarding notifica-
tion, attempts to learn specifics regarding the evaluations,
and discouragement related to his chance for improvement,
as described by Fike and Hinsley, and each was induced to
sign a separation agreement (Durst, like Fike was terminated
after 30 days but then given another opportunity to negotiate
a severance agreement).
At the hearing Sharp was criticized by Respondent wit-
nesses for his bad temper. Sharp admitted having this prob-
lem but testified he had successfully curbed his actions prior
to the evaluation, after this same subject was discussed with
ZurSchmiede in connection with consideration for a possible
promotion. Other employees, including both Ottobre and
Peck (each rated ‘‘good’’), had recognized temper problems,
as did A. Glazier (rated ‘‘good’’), who once physically at-
tacked another employee. Sharp accepted the severance offer
after he asked Ayriss what would happen if he subsequently
had a lapse in control of his temper and Ayriss curtly an-
swered: ‘‘no more screw ups.’’
In May or June 1990, ZurSchmiede called Schoen into his
office and asked him to donate overtime. Schoen said he
would only work overtime if he was paid for it. I credit
Schoen’s testimony that contrary to most all of the other
boltmakers, Schoen, Richard Jones, and Bowman had dis-
cussed and agreed among themselves that they would not
work for free, but Jones and Bowman reneged after
ZurSchmiede called them into his office.3
ZurSchmiede, while looking directly at Schoen, announced
at an employee meeting that only one employee had refused
to donate free time. At ZurSchmiede’s direction, Schoen was
transferred to several unskilled jobs before being returned to
boltmaking. Ayriss agreed Schoen was a talented boltmaker
but Weeks said he had a quality problem. Bill Jones (an in-
spector), said it was no worse than others and Respondent
offered no documentation. Much of the time Schoen was as-
signed to the oldest, least efficient machine yet he was told
he was doing a good job and received no job performance
complaints. His evaluation ‘‘comments’’ recognized him as
one of the most experienced, knowledgeable operators but re-
petitively criticized his quality, speed, and tidiness.
Jones’ evaluation acknowledged that he acomplished his
work but, with no examples given, said he failed to partici-
pate in meetings or make improvements. Ayriss told him a
‘‘total turnaround’’ was needed and that it wasn’t about hard
work but about ‘‘commitment, cooperation, and respect.’’
Hamilton’s evaluation had comments on work ethic, lack
of commitment, slow response to unexpected problems, fail-
ure to present ‘‘solutions,’’ casual approach, and isolation. It
does not state that he ever threatened employees, refused to
perform his work, refused to train employees, or reacted ar-
gumentatively about his work assignments, all reasons that
were latter advanced at the hearing to describe his perform-
ance. Bean otherwise testified that Hamilton was the most
experienced and knowledgeable inspector in the plant. Ham-
ilton’s followup letter criticized him as uncooperative and
lazy. Ayriss told him he was ‘‘unquestionably a good em-
ployee,’’ but ‘‘not a team player.’’ Hamilton’s supervisor,
Blackmer, told him that he felt Hamilton would be fired and
that it would jeopardize his own job to try to help him.
Durst’s evaluation criticized his commitment, work ethic,
lack of trust of coworkers, remoteness, and poor work habits,
each without specific examples. Durst told the management
group that he thought it was a joke but he attempted to im-
prove. Durst’s followup letter said Durst was putting on a
show (of good work), which would not last.
On September 17, Weeks saw Durst talking in the heat
treat office (about a furnace problem that Durst had been
called to diagnose and fix). Weeks did not overhear what
they were discussing and he did not overhear what they were
talking about but Durst later was told he would be fired be-
cause he had been seen talking and drinking coffee.
Durst was said to do good work and former plant facility
engineer Charles Everloch, testified that Durst was a ‘‘very
fine maintenance employee.’’ Durst also testified that he had
stayed over and worked weekends when equipment was
down, often without compensation. He admitted that he often
drank coffee in the plant but after receiving his evaluation,
worked through lunches and breaks.
III. DISCUSSION
The primary event behind this proceeding was the sudden
termination of 13 employees who were rated ‘‘poor’’ in a
newly implemented evaluation program. This occurred short-
ly after decertification of the Union following a year of fruit-
less negotiations between the Company and the Union and
a union loss in the decertification election by a vote of 81
to 13. The record otherwise shows that the 13 terminated
employees, who all were induced to sign separation agree-
ments, were all identified to management as persons with
past and continued union sympathies.
A. The Separation Agreements and Constructive
Discharge
The Respondent contends that each employee seperated
signed a valid ‘‘separation Agreement’’ following their re-
spective receipt of ‘‘poor’’ evaluation and therefore left
‘‘voluntarily.’’
Among other terms, each separation agreement also pro-
vides as follows:
4. As a material inducement to the Company to enter
this agreement, Employee hereby irrevocably and un-
conditionally releases and discharges the Company and
its shareholders, directors, officers, agents, and employ-
ees from any and all claims or causes of action of any
nature, whether known or unknown (including but not
limited to claims arising under any law relating to dis-
crimination or the right of the Company to terminate its
employees) which Employee now has or may hereafter
acquire.
5. Employee represents that he has not filed any law-
suit, complaint or charge against the Company or any
1139FEDERAL SCREW WORKS
person released hereunder with any governmental agen-
cy or court relating to Employee’s employment by the
Company or the termination of such employment and
Employee agrees not to do so in the future (provided,
of course, that Employee may enforce the Company’s
obligations under paragraphs 2 and 3 hereof). Should
Employee breach the obligations of this paragraph, Em-
ployee agrees to pay all costs and expenses, including
actual attorney’s fees, incurred in defense of such law-
suit, complaint or charge.
The ‘‘charge’’ in this proceeding was not brought by any
individual employee but by the Union. The ‘‘Complaint’’ of
course was issued by the Regional Director and I find that
the terms of the agreement noted above are not a bar to the
actions of the Union and the Regional Director in seeking the
enforcement of rights arising under Section 7 of the Act. See
Section 10(a), which provides:
The Board is empowered as hereinafter provided, to
prevent any person from engaging in any unfair labor
practice (listed in Section 8) affecting commerce. This
power shall not be affected by any other means of ad-
justment or prevention that has been or may be estab-
lished by agreement, law or otherwise.
The ‘‘separation agreements’’ involved were not made
with any consideration of specific employee rights under the
Act nor were they ‘‘settlement’’ agreements to resolve a dis-
pute regarding possible unfair labor practices. Moreover, the
facts show that they were individually and collectively im-
posed upon the employees by coercion and duress. Under
these circumstances, such private agreements are not binding
on the Board, compare Independent Stave Co., 287 NLRB
740 (1987), and they do not effectuate the purposes and poli-
cies of the Act when they otherwise are shown to be the
product of a constructive termination. A payment of sever-
ance pay cannot be considered to be a substanial remedy in
circumstance involving illegal termination where the normal
remedy includes reinstatement and backpay. And, as noted
by the Charging Party, a separation agreement does not rem-
edy the rights of the employees who are entitled to a work-
place free of the coercive impact that is implicit in the at-
mosphere surrounding a mass termination of prounion em-
ployees.
Contrary to the contention of the Respondent, I find that
the record clearly shows that the Company imposed burdens
upon the employees that were intended to and did cause
them to ‘‘resign’’ and accept the company enticement of a
settlement agreement. Moreover, as discussed below, these
burdens and conditions were imposed for discriminatory rea-
sons. Accordingly, the General Counsel convincingly has
shown the elements necessary to prove constructive dis-
charge. Specifically, I find that the employee resignations
were not freely entered into. The employees were told that
if they did not sign the release they would be terminated at
the end of 30 days. When some of them made an effort to
‘‘improve,’’ the Company created an atmosphere of condi-
tions in which the affected employees were not given any-
thing more than nonspecific, broad generalities of what their
alleged deficiencies were and they were aggressively told
that it was, in effect, futile to try to improve their ‘‘poor’’
rating within the 30-day deadline. This atmosphere was exac-
erbated by ZurSchmiede’s speech in which he predicted that
they wouldn’t make it through the ‘‘grace’’ period and
threatened that the severance payment offer would be re-
tracted in 30 days. Durst and Fike proved the futility of try-
ing when they, in fact, were terminated at the end of 30
days. As discussed above, these employees were constantly
reminded by members of management, including
ZurSchmiede, that they would never be able to turn their
‘‘poor’’ conduct around and that they would eventually be
fired anyway. It also was made clear to the employees by the
management staff committee that whatever they did, includ-
ing working overtime and through their breaks and lunches,
was not enough.
These are conditions that adequately show a burden (upon
continued employment), so difficult and unpleasant as to
render any ‘‘resignation’’ invalid. This is especially true in
view of the credible testimony of several of these employees
who described how they were ‘‘hustled’’ into signing the
agreement without any real opportunity to review it or to
have their own legal counsel review it. Despite the fact that
Durst and Fike were terminated, the Respondent then ‘‘nego-
tiated’’ with them the next day, resended its actions, and ‘‘al-
lowed’’ them to resign with a separation agreement in a pat-
ent attempt to discourage them (through the paragraphs set
forth above which purport to release the Company and pro-
hibit further claims by the employee), from pursuing any fur-
ther actions regarding their terminations. This conduct by the
Respondent is essentially in the nature of a bribe (involving
several months pay beyond the 3 months’ payment initially
offered), and is inconsistent with a belief or the actuality that
it had legitimately terminated them the previous day.
Under these circumstances, it is concluded that all the em-
ployees evaluated as ‘‘poor’’ and induced to agree to these
separation agreements did not resign voluntarily but were
subjected to constructive termination.
B. Employer Motivation
In a discharge case of this nature, applicable law requires
that the General Counsel meet an initial burden of presenting
sufficient evidence to support an inference that the employ-
ees’ union or other protected, concerted activities were a mo-
tivating factor in the employer’s decision to terminate them.
Here, the record shows that Respondent’s management was
well aware of union activity at the plant dating back to selec-
tion of the Union in December 1987, followed by a year of
fruitless contract negotiation. After the Union won the elec-
tion, however, the Respondent made some contemporaneous
improvements in overall working conditions and this was fol-
lowed by decertification of the Union with the approval of
all but 13 employees who still remained sympathetic to the
Union.
Several former supervisors who participated in manage-
ment meetings (and who left Respondent’s employment
under nonprejudicial circumstances), credibly testified and
confirmed that at the time immediately preceding the decerti-
fication vote, management discussed and reached informed
conclusions on the number and identity of those employees
who continued to support the Union. Little more than half
a year after the decertification, most of these same individ-
uals were evaluated as ‘‘poor’’ employees and told they
would be terminated, after a brief, 30-day grace period. They
also were discouraged from attempting to remain and encour-
1140 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
aged to accept a monetary separation package. As shown in
the discussion below, the employees’ evaluation as ‘‘poor’’
workers was not based upon a valid objective review of their
qualifications and performance. Moreover, they were termi-
nated without any asserted economic justification at a time
when Respondent required overtime and there was no short-
age of work. They also were terminated after Respondent
principal operating official, Vice President ZurSchmiede, had
expressed antiunion remarks, and had given a speech con-
necting those rated as ‘‘poor’’ as employees who refused to
embrace the corporate ‘‘family,’’ employees who should ac-
cept a severance agreement because they would not make it
through a 30-day grace period.
These employees were terminated after they were identi-
fied as prounion in straw polls that were conducted in man-
agement meetings (as credibly testified to by former super-
visors who were in attendance), and after top official
ZurSchmiede or Ayriss had said union supporters would be
dealt with ‘‘when the time comes.’’ Although not relied
upon, except as cooberative evidence, I also find that janitor
Mills credibly testified that he saw a list of names on
Zurschmiede’s desk in March or April 1990, which was con-
sistent with those names subsequently evaluated as ‘‘poor,’’
and names which were the same as those identified in man-
agement meetings as those who still favored the Union.
As discussed below, the record also shows that the evalua-
tion process utilized by the Respondent was biased and pre-
disposed to identify those who failed to embrace a coopera-
tive, nonunion workplace, as ‘‘poor’’ employees.
These factors established antiunion animus on the part of
the Respondent. Moreover, recognition of the timing of the
evaluations and terminations only a few, ‘‘discrete’’ months
after the decertification vote, the bonus rewards to nonunion
employees, and the hasty and pretextual 30-day correctional
grace period, all combine to warrant a conclusion that the
General Counsel has established a strong prima facie show-
ing that union activity was a motivating factor in the Re-
spondent’s decision to terminate this group of employees.
See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), ap-
proved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
Once the General Counsel establishes a prima facie case,
the burden shifts to the Respondent to show that it would
have taken the same action even in the absence of union con-
siderations. In light of the General Counsel’s strong prima
facie showing, the Respondent’s burden here is substantial,
see Vemco, Inc., 304 NLRB 911 (1991). Accordingly, the
testimony will be discussed and the record evaluated to con-
sider Respondent’s defense and, in the light thereof, whether
the General Counsel has carried his overall burden.
Respondent contends that only three of the seven employ-
ees named in the complaint (Fike, Jones, and Sharp) were on
the bargaining committee and were known to ZurSchmiede
as active union supporters and it argues that the remaining
four were so ‘‘virtually inactive’’ that there is a de minimis
basis for interference of animus against them.
Contrary to Respondent’s assertations, the record shows at
least nominal union activity as well as management identi-
fication of them as employees specifically named and in-
cluded in its ‘‘straw poll’’ to identify remaining union sym-
pathizers. In any event, in circumstances involving a mass or
group termination, there is no need that each individual be
identified specifically as a known union activist for the Gen-
eral Counsel to substantiate his already strong showing that
Respondent’s overall action was discriminatorily motivated
and that this discrimination affected everyone in the group,
see the Board’s discussion in the Vemco case, supra.
Otherwise, Respondent’s defense centers on a reliance on
its evaluation of each alleged discriminatee as a ‘‘poor’’ em-
ployee as a valid basis for termination.
C. Respondent’s Employee Evaluation Format
and Process
In part, the Respondent’s reliance on the affected employ-
ee’s ‘‘poor’’ evaluations begs the question as to why a
‘‘poor’’ evaluation required termination. Initially, it is noted
that the evaluations were a new, ‘‘one time’’ occurance and
when done they initially were not placed in the employees’
normal personal file. Although some of Respondent’s wit-
nesses gave ‘‘after-the-fact,’’ anecdotal criticisms of most of
the ‘‘poor’’ employees, there was no objective, justifiable
claim that any one of them was seriously deficient in the
quality or quantity of their work.
Fike was said to be a ‘‘real good repair man’’ who always
did a good job. The others were skilled long-term employees
without attendance or other disciplinary problems. Hamilton,
for example, had progressed from floor inspector to final in-
spector, to chief inspector, and he was recognized as the
most experienced and knowledgeable inspector in the plant.
If in fact he had a deficiency in ‘‘responding to unexpected
problems,’’ it is not explained why he was not merely de-
moted form his chief inspector job, instead of termination,
the most severe corrective action possible.
Hinsley, for example, despite his handicaps, including his
speech and hearing impediments, was promoted to quarter
packer leader where his performance was acceptable and
even complimented. If in fact his job performance required
corrective action, it is not explained why he was not returned
to being a packer rather than being terminated completely.
Even Mills, who was one of the 13 evaluated ‘‘poor,’’ was
described as an excellent janitor who kept the plant cleaner
than it has been since he left, yet he was summarily induced
to sign a separation agreement. Respondent made no attempt
to recognize that his evaluation criticisms did not reflect
upon his work performance and his ‘‘poor’’ ratings were at-
tributable to his handicap or to workplace harassment in-
flicted upon him by other employees because of his vulner-
ability.
In each of these examples, as well as with the other
‘‘poor’’ employees, the Respondent made no effort to relate
the ‘‘poor’’ evaluations to improved work performance (such
as aggressiveness training or counseling for Hamilton or
Sharp for their respective ‘‘isolation’’ or ‘‘bad temper’’). Al-
though the described purpose of the employee evaluations
were presented in terms of providing a vehicle for the identi-
fication of problems and improvement in performance, the
Respondent made no correlation between this purported goal
and the individual evaluations and it provided neither a clear
identification of asserted problems nor a reasonable or ade-
quate timeframe in which an asserted but deficient employee
could attempt to improve. As noted above, these employees
were actively discouraged, rather than assisted, in meeting
any improvement or correctional goals. This approach by the
1141FEDERAL SCREW WORKS
4 Other questions, which tend to follow the same theme, include:
5. Is the employee willing to to do task which may not be
his duty but which help the community, without being asked?
10. Is the employee cooperative?
11. Does the employee help others cooperatively?
15. Does the employee’s behavior demonstrate that he under-
stands the importance of mutual respect and trust to the plant
community’s well being and survival?
17. Does the employee show a willingness to improve as part
of a group?
18. Does the employee work toward achieving a consensus
when working in a group?
19. Does the employee utilize the knowledge of others to im-
prove as part of a group?
Respondent, as well as the lack of any economic justification
for any reductions in force, and its insistance on termination
rather than some lesser form of disciplinary or corrective ac-
tion, clearly supports an inference that Respondent’s utiliza-
tion of the ‘‘poor’’ evaluations was a pretextual devise to ra-
tionalize the termination of prounion employees.
This conclusion is reinforced by a review of the actual
evaluation format and process and recognition that the eval-
uation format had a discriminatory predisposition to repet-
itively classify employees with prounion sympathies as unco-
operative, nonfamily oriented, and therefore ‘‘poor.’’
Here, the Respondent attempts to mask what is shown to
be an underlying unfair labor practice with a divergence into
discussions about cooperative management theories and their
asserted relation to the employee evaluations. Contrary to the
Respondent’s implications, this case, and any finding herein
against the Company, is not a ruling at odds with cooperative
management and therefore anticompetitive in its conclusions
and results. What is demonstrated here is the misuse, or the
potential for such misuse, when the concept of cooperative
management is endorsed and applied in such an extreme way
that it became a vehicle for restricting the basic Section 7
rights of its employees.
Here, it also appears that management’s emphasis on co-
operation from its employees, also has contributed to the
covering up of probable violations of the Fair Labor Stand-
ards Act as well as the Civil Rights Act of 1964.
Here, the Respondent attempts to hide its involvement in
the establishment of its evaluation criteria by claiming that
the product was the sole process of an employee work group.
This assertation is not consistent with the record. Specifi-
cally, as noted above, Human Resources Manager Panetta
‘‘facilitated’’ the functions of the group with examples and
might comment that some things suggested by the group
were not what ZurSchmiede had in mind. ZurSchmiede him-
self stated that the group’s ideas were not new but were
ideas (about cooperation, a workplace community, and fam-
ily), that were talked about over and over and merely codi-
fied into a set of criteria. Moreover, the makeup of the
group, selected by Panetta, included no recognized prounion
employees, and, in fact, three of the original five previously
were identified in a management meeting (in Panetta’s pres-
ence) as strongly antiunion and one worked directly for Pa-
netta in personal matters.
The evaluation criteria consisted of 25 questions divided
into the six areas prefaced with the following ‘‘principles’’:
Our objective as a group, or plant community, is to
protect the family of every employee. However, not
only must the group be committed to the individual’s
well being, the individual must also be committed to
the group’s well being.
We believe that the characteristics which best allow
us as a group to protect our families are, in their order
of importance, the following:
Commitment to the welfare of the group
Cooperation as the primary expression of commit-
ment
Mutual respect and trust as the primary basis of co-
operation
Willingness to improve as part of a group
Sense of urgency to accomplish tasks, overcome ob-
stacles, and develop new talents both in a group and as
an individual
Specific job capability improvement in support of the
group
There were nine questions in the ‘‘commitment’’ category,
four under ‘‘cooperation’’ and three each in the remaining
catagories.
The first question asked is:
1. Is the employee committed to the well being of
the plant community?4
These are only three alternative ways to answer the ques-
tion: poor, good, or outstanding. Three lines are provided for
comments and while some of the entries for those who re-
ceived overall ‘‘poor’’ evaluations have some written com-
ment, many ‘‘poors’’ were made without explanation. By
way of comparison Dave Yost (who was named to the ex-
panded work group) was rated ‘‘outstanding’’ in most all
questions without a single written amplification.
The Respondent presented testimony from a professor,
knowledgeable in the area of work behavior and performance
and the cooperative workplace, who testified that the evalua-
tion form and process by which it was implemented was
valid. Although the court accepted the professor’s qualifica-
tion as an expert witness, the Board holds its own expertise
in matters such as this and is not bound to accept the expert
witness’ testimony as controlling. Here, the record otherwise
demonstrates overriding evidence that conflicts with Re-
spondent’s expert’s evaluation, and I find that the overall
record refutes the expert’s opinion regarding the revelant va-
lidity of the evaluations.
First, although the witness indicated a familiarity with per-
formance evaluations within the automotive industry at Ford
Motor Company, his experience was with white collar em-
ployees rather than production workers. He also did not an-
swer directly the court’s questions regarding the validity of
evaluations on the similiar concepts of commitment to the
community and mutual respect and trust, when such an eval-
uation is made just after there has been a divisive vote be-
tween two groups in the workplace. He also admitted that the
evaluation process could be manipulated to shape the results.
He also stated that the purpose of employee evaluations is
to produce improvement in employee performance and that
when a rating system is tilted in one direction by having two
positive ratings (good and outstanding) and one negative
(poor), the idea usually is to encourage improvement.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Here, however, I find the process was not to encourage
improvement but to identify on a pass (good or out-
standing)—fail (poor) scale those who were not ‘‘committed
to the group welfare,’’ a phrase that appears to be an euphe-
mism for nonunion. As noted above, ‘‘poor’’ rated employ-
ees were discouraged from trying to improve and were of-
fered incentives to leave. Those who were naive enough to
try to meet the brief, 30-day improvement deadline were
given no encouragement and they were directly terminated at
the end of 30 days (but then given a separation payment in
exchange for an agreement purporting to relinquish their pos-
sible legal remedies).
The evaluation itself, both in its statement of principles
and most important criteria, is set forth with a vocabulary of
terms that are not ideologically nutural. In short, the evalua-
tion is set in terms that are biased and predisposed to identify
any employees that remain prounion after the decertification
vote as necessarily being anticooperation, anticommunity,
and antigroup or family.
Ironically, if the same evaluation would have been made
15 months earlier, ‘‘poor’’ employees such as Fike, Jones,
and Sharp, who were all on the union negotiating committee
working with the support of and on behalf of the majority
of employees (at a time when the Union had cooperatively
given management a no-strike agreement to ensure continued
business with Ford Motor Company and had publically urged
employee cooperation with management), would have had to
be rated as ‘‘outstanding’’ on these same criteria.
When Fike’s job as a repairman led him to attempt to fin-
ish repairing a machine for the next day or shift and to list
his actual hours worked, he could have been praised as hav-
ing a sense of urgency and being committed to the overall
plant but he was criticized for these actions because he was
‘‘not committed to the plant community.’’
Suddenly, however, the prounion employees were part of
a small minority and therefore could not be viewed as coop-
erative or family oriented because they had not totally em-
braced Respondent’s applied philosophy of mandatory con-
sensus and commitment to the groups’ well being. The eval-
uation criteria, although seemingly redundant in several re-
spects, was suggested, reviewed by, and approved by man-
agement and, at this time it was applied (shortly after the de-
certification election), it was especially and inherently biased
and predisposed to identify prounion employees as unco-
operative, nonfamily oriented and therefore ‘‘poor’’ employ-
ees. Respondent’s use of only three ratings, one negative and
two positive, also ensured that those evaluated as being
‘‘family’’ outsiders would be vulnerable to disciplinary ac-
tion and no alternative ratings were possible (the least biased
evaluations commonly have four, five, or more criteria and
include a choice of negatives, such as unsatisfactory or needs
improvement, or neutral, such as fair or satisfactory, criteria).
Within these criteria, as in ‘‘Newspeak,’’ in Orwell’s 1984
(Harcourt, Brace, 1949), the expression of individual, non-
majority or unorthodox action or opinion is not tolerated and
therefore the individual must be rated poor if he has engaged
in ‘‘heresies’’ that question or oppose management’s ‘‘big
Family’’ (‘‘Big Brother’’), type pronouncements. Here, the
members of the evaluation groups have played the part of
Orwell’s ‘‘Thought Police’’ and have confirmed the identity
of those employees whose characteristics and past behavior
indicate, through the vocabulary and euphemisms of the cri-
teria, that they might commit some action against the interest
of management as embodied in the corporate family concept.
After identification, the response, as in Orwell’s novel, supra,
is a purge.
This purging of employees is not shown to have been re-
quired by any legitimate business reason. To the contrary, the
record otherwise indicates that it was illegally motivated and
resulted in the communication of a clear message to other
employees that no lingering involvement with unionism,
independent thoughts, or concerted activity, would be toler-
ated by the Company. Here, the Respondent’s use of an em-
ployee participation committee or work group as a device to
seemingly lay the groundwork for identification of the alleg-
edly ‘‘poor’’ employees, clearly was not proper for the rea-
sons discussed above. It did not legitimize Respondent’s own
actions in influencing and manipulating the constructive ter-
mination of almost all of those employees so identified, and
I find that it demonstrates the overall pretextual nature of Re-
spondent’s defense.
Also, it is noted that criticisms directed at several ‘‘poor’’
employees are directed at behavior (such as temper, horse-
play, and production quality), that was tolerated in employ-
ees who were nonunion. Also, Glazier (added to the ‘‘poor’’
group by the employee committee) was strongly antiunion
and was quickly ‘‘rehabilitated’’ to a ‘‘good’’ classification.
The record clearly shows disparate treatment that emphasizes
the pretextual nature of Respondent’s defense. This is espe-
cially true since the reasons for the evaluations most often
reflect occurrences that took place in the past and do not re-
flect ZurSchmiede’s promise of ‘‘amnesty’’ and that employ-
ees would be considered to have ‘‘clean slates’’ as of the
time he took over management of the plant. Its actions in ter-
minating employees for a ‘‘poor’’ evaluation also is incon-
sistent with its work rules and its purported system of pro-
gressive discipline.
Lastly, it also is noted that one aspect of the criticism of
several employees was that they were uncooperative or un-
committed because of their attempts to record the actual
number of hours they worked, specifically hours in excess of
40 hours a week, and their refusal or reluctance to work un-
recorded, unpaid so-called voluntary overtime. The employ-
ees resistance to Respondent’s actions in this regard were
protected concerted activities and Respondent’s actions in not
recording, not paying, and soliciting ‘‘voluntary’’ overtime
appear to be illegal and a violation of the Fair Labor Stand-
ards Act. The fact that the former unit employees were paid
on a weekly, not hourly, basis after the Union’s decertifica-
tion does not exclude them from the provisions of the FLSA
and, under that Act, hours worked in a week in excess of
40 hours must be recorded and paid for at an overtime rate.
Moreover, an employee cannot voluntarily waive the provi-
sions of the statute.
It also is noted that title VII of the Civil Rights Act of
1964 prevents job discrimination against handicapped per-
sons. Here, the evaluations for employees Hinsley and Mills
appear to fault them for matters associated with their recog-
nized handicap status and these asserted faults are not
claimed or shown to be valid evaluations or predictors of job
performance. Hinsley (with speech and hearing impediments
which affected his active participation in group meetings)
was actually criticized by Manager Panetta for using his
handicap as an excuse.
1143FEDERAL SCREW WORKS
5 In accordance with our decision in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987), interest on and after January 1,
1987, shall be computed at the ‘‘short-term Federal rate’’ for the un-
derpayment of taxes as set out in the 1986 amendment to 26 U.S.C.
§ 6621. Interest on amounts accrued prior to January 1, 1987 (the ef-
fective date of the 1986 amendment to 26 U.S.C. § 6621), shall be
computed in accordance with Florida Steel Corp., 231 NLRB 651
(1977).
6 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
Continued
These latter two examples further show the illegitimacy of
Respondent’s evaluation process and the pretextual nature of
its alleged justification for its actions. Under all these cir-
cumstances, I find that the Respondent would not have eval-
uated this group of employees as poor or have so hastily ter-
minated the employees in the group were it not for the union
activities at Respondent’s plant. I find that Respondent was
motivated by a desire to purge any remaining union presence
left after the decertification election and that the terminations
were a pretextual exercise of its economic and manipulative
power over its employees designed to influence and interfere
with the exercise of employee rights under Section 7 of the
Act. The record shows that the mass termination initiated by
Respondent on August 21, 1990, was for illegal and dis-
criminatory reasons and I conclude that the General Counsel
has met his overall burden and has shown that Respondent
violated Section 8(a)(1) and (3) of the Act, as alleged.
Finally, Respondent’s violation of the Act shown above is
shown to have been directed not only at the seven individ-
uals named in the complaint but at the entire class or group
of employees that were evaluated as ‘‘poor’’ and construc-
tively terminated on or shortly after August 21, 1990, as a
result of those evaluations. The other persons in the group
were terminated based on the same underlying violation of
the Act involving those named in the complaint and the cir-
cumstances were fully litigated within the framework of the
existing complaint. Therefore, in accordance with the Gen-
eral Counsel’s motion to confirm the pleadings to the evi-
dence and on the court’s own motion, the complaint will be
amended to include within the provisions of the remedy here-
in all persons in the class affected by Respondent’s mass ter-
mination initiated on August 21, 1990. Accordingly, I further
conclude that the Respondent’s collective discharge of all of
these employees is shown to have been in violation of Sec-
tion 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By issuing ‘‘poor’’ evaluations and by discharging or
otherwise causing the termination of employees Vaughn
Schoen (August 21), Ron Sharp (September 5), Joe Hamilton
(September 7), Bill Jones (September 7), Larry Hinsley (Sep-
tember 10), Dan Durst (September 25), and Jack Fike (Sep-
tember 25), respectively, as well as Jack Pfaff, John Lange,
Don Sims, Linda Bromlee (Lucht), David Schied, and Tim
Mills, on or after August 21, 1990, Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act.
REMEDY
Having found that the Respondent engaged in unfair labor
practices, it is recommended that the Respondent be ordered
to cease and desist therefrom and to take the affirmative ac-
tion described below which is designed to effectuate the poli-
cies of the Act.
With respect to the necessary affirmative action, it is rec-
ommended the Respondent be ordered to reinstate each of
the discriminatees to their former job or a substantially
equivalent position, without prejudice to their seniority or
other rights and privileges previously enjoyed, and make
them whole for any loss of earnings they may have suffered
because of the discrimination practiced against them by pay-
ment to them of a sum of money equal to that which they
normally would have earned from the date of the discrimina-
tion to the date of reinstatement, in accordance with the
method set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1989),5 and that Respondent ex-
punge from its files any reference to the termination, and no-
tify them in writing that this has been done and that evidence
of this unlawful discipline will not be used as a basis for fu-
ture personnel action against them.
Because each discriminatee was illegally rated less than
‘‘good,’’ they were discriminatorily denied a $2000 bonus
payment given to other employees, accordingly Repsondent
shall be required to make the discriminatees whole in this re-
spect, plus interest.
In making whole the employees for lost earnings and ben-
efits, a question can arise as to whether the amounts of
money paid by Respondent for each ‘‘separation agreement’’
should be treated as interim earnings. ‘‘Settlement’’ agree-
ments involving disputed employee claims againt a company
have been said to be interim earnings because they otherwise
would result in a ‘‘windfall to’’ the employees and a ‘‘pen-
alty against’’ the employer. J.R.R. Realty Co., 273 NLRB
1523 (1985). In the instant case, however, there was no dis-
pute in existence to be settled between the Company and ei-
ther the individual employees or the Union when the Re-
spondent committed its illegal action of evaluating them as
‘‘poor’’ and thereafter causing their termination by coercing
them into acceptance of a separation agreement. Respond-
ent’s payments were not settlements that were clearly and
nonequivocally directed at rights arising under Section 7 of
the Act and enforceable by the Board. Instead, they were in
the nature of ‘‘bribes’’ designed to obtain an unlawful objec-
tive and they were a decisive element in inducing the unlaw-
ful separations. To disregard such a payment as interim earn-
ings under these circumstances would not constitute the addi-
tion of a punitive measure against the Respondent but would
merely leave Respondent in the position it has placed itself
in through its unlawful acts. It otherwise places the burden
on the wrongdoer and prevents it from gaining some benefit
from its wrongful act. Accordingly, any such payments made
as an element of its wrongful acts should not be classifiable
as interim earnings.
Otherwise, it is not considered to be necessary that a broad
order be issued.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
7 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ORDER
The Respondent, Federal Screw Works, Big Rapids,
Michigan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Issuing ‘‘poor’’ evaluations and discharging or other-
wise causing the termination of any employees because of
activity protected by Section 7 of the Act.
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Dan Durst, Jack Fike, Joe Hamilton, Larry
Hinsley, Bill Jones, Vaughn Schoen, and Ron Sharp as well
as Jack Pfaff, John Lange, Dan Sims, Linda Bromlee
(Lucht), David Schied, and Tim Mills immediate and full re-
instatement and make them whole for the losses they in-
curred as a result of the discrimination against them in the
manner specified in the remedy section of the decision.
(b) Expunge from its files any reference to these termi-
nations and their underlying evaluations and notify them in
writing that this has been done and that evidence of the un-
lawful terminations and evaluations will not be used as a
basis for future personnel actions against them.
(c) Preserve and, on request, mke available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its Big Rapids, Michigan facility and mail to
each person named in paragraph 2(a) above copies of the at-
tached notice marked ‘‘Appendix.’’7 Copies of the notice, on
forms provided by the Regional Director of Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by Respondent immediately upon receipt and
maintained for 60 consecutive days in conspicuous places in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or cov-
ered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.