Greenfield Die & Mfg.

National Labor Relations Board - Board Decisions

Nov 30, 1998

327 N.L.R.B. 237 (N.L.R.B. 1998)

GREENFIELD DIE & MFG. CORP. 237
Greenfield Die and Manufacturing Corporation and
Local 247, International Brotherhood of Team-
sters, AFL–CIO and Reno P. Camiller. Cases 7–
CA–37441, 7–CA–37793 and 7–CA–38265
November 30, 1998
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND BRAME
On November 8, 1996, Administrative Law Judge Karl
H. Buschmann issued the attached decision in this pro-
ceeding. The Respondent filed exceptions and a support-
ing brief.
On June 6, 1997, the Board issued an Order remanding
the proceeding to the judge for analysis of the Respon-
dent’s contention that the General Counsel had improp-
erly revoked a settlement agreement, dated October 23,
1995, involving certain alleged violations of Section
8(a)(1) of the Act, and for further consideration of his
finding that the Respondent had violated Section 8(a)(3)
and (1) of the Act by discharging employee Reno Camil-
leri. On August 18, 1997, the judge issued the attached
supplemental decision. The Respondent filed exceptions
to his supplemental decision and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decisions and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order.
We adopt the judge’s findings that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by its discharge
of Reno Camilleri, that the Regional Director properly
revoked a settlement agreement,2 and that the Respon-
dent violated Section 8(a)(1) by various threats and an
interrogation by Supervisor Stan Klieb, and by the letter
of the Respondent’s owner, Don Hinkle, of July 11,
1995, which interfered with Provo’s right to engage in
Section 7 activities.
Contrary to our dissenting colleague, we also adopt the
judge’s findings that the Respondent’s owner, Don Hin-
kle, coercively interrogated employees Joseph Provo and
Elmer Harold Runyon and that the Respondent unlaw-
fully discharged Provo because of his union activities.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
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.
2 In adopting the judge’s finding that the Regional Director properly
revoked the settlement agreement of October 23, 1995, we rely on the
evidence that the Respondent committed an unfair labor practice fol-
lowing the settlement agreement by discriminatorily discharging
Camilleri on October 30, 1995. Because the settlement agreement was
properly vacated, we do not need to reach the judge’s alternative analy-
sis involving the settlement agreement’s reservation clause. Cf. B & K
Builders, 325 NLRB 693 (1998). We also do not rely on any sugges-
tion by the judge that the Respondent’s presettlement misconduct in
unlawfully discharging employee Joseph Provo also constituted a basis
for setting aside the settlement agreement.
1. Regarding the interrogations that our colleague
would not find unlawful, the facts show that Hinkle ap-
proached Provo outside the Respondent’s facility in early
June 1995,3 and asked whether Provo was distributing
union cards and literature on company time. Hinkle then
stated, “We don’t have a union here. I don’t want a un-
ion.” Additionally, in either June or July, Hinkle had a
brief meeting with Runyon in Hinkle’s office. Hinkle
asked Runyon why he wanted a union and whether
Runyon was passing out union literature on company
time. Hinkle, as he did with Provo, told Runyon that he
didn’t want a union, and added that nobody else did ei-
ther.
In determining whether an employer’s interrogation
violates the Act, the Board examines whether under all
the circumstances the questioning reasonably tends to
interfere with, restrain, or coerce employees in the exer-
cise of their Section 7 rights.4 In this case, the interroga-
tions occurred against a background of other unfair labor
practices in that the Respondent otherwise interrogated
employees, threatened employees with reprisals, includ-
ing discharge, and ultimately discharged both Provo and
fellow employee Camilleri. Further, Hinkle was the Re-
spondent’s highest ranking official and his interrogation
of Runyon occurred in Hinkle’s office. Although Provo
and Runyon were the leading union activitists and en-
gaged in campaign activities on the Respondent’s prop-
erty, we do not find that Hinkle’s questioning of them
was lawful. Thus, Hinkle specifically asked both em-
ployees whether they were campaigning for the Union on
company time even though there was no evidence that
the employees were doing this. Subsequent events sug-
gest that the inquiry not only lacked any such predicate,
but was intended to obtain information for which Provo
could be disciplined. Hinkle’s further comments to both
employees that he didn’t want a union were likely to
convey the message to Provo and Runyon that he viewed
any campaigning by them, whether protected or not, with
intense displeasure.5 We therefore conclude in these
circumstances that Hinkle violated Section 8(a)(1) by
interrogating these employees about their union activi-
ties.
2. Hinkle reinforced the hostile message of his earlier
remarks by giving Provo a copy of the July 11 letter that
Hinkle had sent to the Union. The letter suggested that
the Union remind Provo that he had legal obligations and
that he was required to abide by the Respondent’s no-
3 All dates are in 1995, unless otherwise noted.
4 Emery Worldwide, 309 NLRB 185, 186, 187 (1993).
5 In an interrogation of employee Provo by Supervisor Stan Klieb
around the same time, Klieb had threatened Provo by telling him that
Hinkle had threatened to fire him or “anyone remotely concerned with
the Union.”
327 NLRB No. 52
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 238
solicitation policy; and it claimed that Provo had “con-
ducted himself in violation of these restrictions.” Hin-
kle’s letter concluded by suggesting that the Union “in-
struct your agent to cease . . . from threatening and coerc-
ing employees who have clearly indicated to your agent
that they do not wish to participate in the organizing
campaign” and by ominously warning, “Continued com-
plaints of threatening and coercive conduct on the part of
your agent . . . may result in discipline up through and
including discharge for, at least, insubordinate conduct.”
The Board has held that employers violate Section
8(a)(1) of the Act when they invite their employees to
report instances of fellow employees’ bothering, pressur-
ing, abusing, or harassing them with union solicitations
and imply that such conduct will be punished.6 It has
reasoned that such announcements from the employer are
calculated to chill even legitimate union solicitations,
which do not lose their protection simply because a solic-
ited employee rejects them and feels “bothered” or “har-
assed” or “abused” when fellow workers seek to per-
suade him or her about the benefits of unionization.
While the Board has accepted as lawful an employer’s
announced intent to protect employees from “union or-
ganizers or other employees” who “threaten” them,7 and
the Respondent used such language here, the letter taken
as a whole has the same destructive effect as the mes-
sages found unlawful in the cases cited above. The letter
asserts that Provo, allegedly as the Union’s “agent,” has
violated the Respondent’s “restrictions” and must
“cease” from “threatening and coercing” fellow employ-
ees. There is, however, no evidence that Provo had en-
gaged in threats or coercion, so the message to him was
that he must cease the lawful union soliciting in which he
had been engaged, because employees’ complaints about
his soliciting might be taken as evidence of unprotected
conduct.8 The letter’s threat of “discharge” for “at least,
insubordinate conduct” was also, in context, linked to
Provo’s solicitation activities. He could reasonably un-
derstand the letter as an order to “cease” them if they
drew complaints from fellow employees, and a warning
that failing to do so could be regarded as insubordination.
For these reasons, we find that Hinkle’s letter may rea-
sonably be construed as interfering with, restraining, and
coercing employees in violation of Section 8(a)(1).
3. We also adopt the judge’s finding that Provo’s dis-
charge violated Section 8(a)(3) and (1). Provo, whom
the Respondent had employed as a building maintenance

6 See, e.g., Nashville Plastic Products, 313 NLRB 462 (1993); Ar-
cata Graphics, 304 NLRB 541 (1991); Eastern Maine Medical Center,
277 NLRB 1374, 1375 (1985), and cases there cited.
7Liberty House Nursing Homes, 245 NLRB 1194, 1197 (1979). Ac-
cord: Arcata Graphics, supra.
8 Although Provo was issued a written reprimand on August 4 and
given a 3-day suspension for calling a fellow employee a derogatory
term, the incident referred to occurred on the day of the reprimand and
thus could not have been the subject of the July 11 letter. In any event,
there is no evidence it related to Provo’s union activity.
janitor for about 3 years, contacted the Union in April
about organizing the Respondent’s employees. Provo
thereafter distributed union cards to his fellow employees
on the Respondent’s property in both the parking lot and
the lunch room. His testimony was uncontroverted that
he continued to engage in organizing activities from
April until his discharge on October 16.
The Respondent, as noted, coercively interrogated
Provo and Runyon during the organizing campaign. We
also adopt the judge’s findings, as does our colleague,
that the Respondent further violated Section 8(a)(1)
when supervisor, Stan Klieb, during two separate con-
versations in June, interrogated Provo, threatened him
with discharge and other unspecified reprisals, and told
Provo that the Respondent intended to subdivide the
business if the employees chose union representation and
when Hinkle threatened Provo with discipline in his July
15 letter.
Applying the analysis set forth in Wright Line,9 we
find that the General Counsel has made a prima facie
showing sufficient to support an inference that protected
conduct was a motivating factor in the Respondent’s de-
cision to discharge Provo. The General Counsel has
shown that Provo was the leading union activist and that,
as even the dissent concedes, the Respondent through
Hinkle and Klieb unlawfully threatened him with dis-
charge.10 We find in these circumstances that the Gen-
eral Counsel has clearly established that the Respon-
dent’s discharge of Provo was motivated at least in part
by its animus towards Provo’s union activities. The bur-
den then shifted to the Respondent to establish, by a pre-
ponderance of the evidence, that it would have dis-
charged Provo even in the absence of his union activity.
The Respondent argues in its brief that it discharged
Provo for an act of insubordination, i.e., refusing a work
assignment on the day of his discharge.
With respect to the Respondent’s defense, the record
shows that Provo began work at 8 a.m. and soon noticed
a bag of trash on the floor outside the press room. When
another janitor, Josephine Engler, accused him of leaving
the trash in her work area, Provo denied the accusation.
Russell Gregg, Provo’s immediate supervisor, then or-
dered Provo to remove the trash. After Provo claimed
that Engler had left trash on his side before, Provo told
Gregg that he would remove the trash on completing his
work assignment in another area of the facility. When
Provo came back to remove the trash, he discovered that
it was gone. Later that day, Gregg called Provo into his
office and said that Donna Sanderson, the Respondent’s
human resources manager, wanted to see him. Sander-
son handed Provo two documents, an Employer Warning
Report and a Termination Report, and told Provo that he
9 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
10 And Klieb attributed this discharge threat to the Respondent’s
owner Hinkle.
GREENFIELD DIE & MFG. CORP. 239
was discharged. The Warning Report, signed by Gregg,
stated that Provo had been told to pick up certain trash
and that he had “refused and stated he was going to see
Don Hinkle about this matter” and described the viola-
tion as “Refusing to do job that he was told to do.” The
Termination Report listed “Standard of Conduct, Insub-
ordination, Threatening, Intimidating, and Intefering with
Employees.”
Our dissenting colleague contends that the Respondent
established that Provo engaged in “patently insubordi-
nate” conduct on October 16, which Respondent lawfully
punished as such, and that Provo’s discharge on that date
would have occurred regardless of his union activity be-
cause he had previously been warned he would be dis-
missed for a “third’ act of insubordination and this was
that third act. In our view, the Respondent has not estab-
lished this by a preponderance of the evidence.
First, as noted above, the judge credited Provo’s tes-
timony that he had not done what the Warning Report
accused him of, i.e., refusing to pick up trash. While he
had complained that another employee had placed the
trash there, he agreed to pick it up as soon as he had
completed his current task in his regular area of assign-
ment; and when he went back to do so, the trash was
gone. In light of the judge’s additional finding that the
Respondent had previously tolerated Provo’s argumenta-
tiveness about “aspects of his job,” it is reasonable to
infer that this incident was seized on as a way of getting
rid of a union activist—one whom a supervisor had
warned that Hinkle intended to “fire,” along with “any-
one remotely concerned with the Union.”11 That 4
months had passed since Provo’s overt participation in
union activities is not, as our colleague suggests, a reason
for concluding that the Respondent was no longer con-
cerned about Provo’s union sentiments. The Respondent
had no assurance that Provo would not continue the or-
ganizing campaign or seek to revive it if it had lagged.
We also agree with the judge that the phrase “threaten-
ing, intimidating, & interfering with employees” on the
Termination Report, which echoes the phrasing of Hin-
kle’s unlawful July warning letter, was a reference to
Provo’s union solicitation activities and indicates that
those activities were still on the mind of the Respon-
dent’s managers.12

11 Our colleague notes that Klieb was not in the Respondent’s em-
ploy when Provo was fired. We do not regard that as minimizing the
significance of the threats conveyed by Klieb. In particular, Klieb
attributed the discharge threat to Hinkle, and Hinkle’s own conduct
gave credence to that threat.
12 Our dissenting colleague’s suggestion that the phrase referred to
Provo’s conduct toward fellow employee Josephine Engler is based on
testimony of Human Resources Manager Sanderson. When questioned
about the particulars of her claim that Provo had threatened Engler,
however, Sanderson said simply that Engler said Provo had sworn at
her and that Provo had admitted swearing. The judge noted generally
that “Sanderson’s testimony did not impress me for its truth and verac-
ity.” In describing her reasons for terminating Provo, Sanderson had
Finally, even apart from the character of the October
16 incident, we do not agree that the Respondent has
proven that this was simply the implementation of a pro-
gressive discipline plan that required discharge for a third
incident of insubordination. While there was a reference
to “dismissal for third incident of insubordination” on a
May 1, 1995, Warning Report issued to Provo, the Re-
spondent did not put into the record evidence of any prior
warning for insubordination. Our dissenting colleague
notes that the May 1 report cited to a “lst warning” in
February 1995 and states that “it seems evident from the
wording of the May 1 reprimand that the February disci-
pline also involved a case of insubordination on Provo’s
part.” Certainly that is a possibility, but the May 1
Warning Report also suggests there must have been an
earlier such report, yet none was produced by the Re-
spondent. We cannot assist the Respondent in carrying
its burden of establishing its Wright Line defense by
drawing inferences in its favor concerning documents of
its own that it fails, without explanation, to produce.
Neither can we find that the Respondent carried its bur-
den simply on a showing that Provo engaged in some
conduct that might be regarded as a legitimate ground for
discharge.13 It was the Respondent’s obligation to show
by a preponderance of the evidence that Provo’s dis-
charge would have occurred even in the absence of his
union activities, i.e., his initiation of the union campaign.
We find that it did not carry that burden, and, accord-
ingly, we affirm the judge’s finding that the Respondent
violated Section 8(a)(3) and (1) of the Act by discharging
Provo.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Greenfield Die and Manufac-
turing Corporation, Canton, Michigan, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order.

MEMBER BRAME, dissenting in part.
Although I agree with my colleagues that the Respon-
dent unlawfully discharged employee Reno Camilleri
and that, based on Camilleri’s discharge, the General
Counsel properly revoked a prior settlement agreement
covering alleged 8(a)(1) violations,1 I do not find, in con-
sidering these 8(a)(1) allegations on the merits, that the
Respondent violated the Act in every instance alleged as
unlawful in the complaint. I would dismiss the allega-
tions that the Respondent’s owner, Don Hinkle, coer-
cively interrogated employees Joseph Provo and Elmer

denied that she was aware of his union activities. The judge found this
claim “implausible.”
13 Hicks Oils & Hicksgas, 293 NLRB 84, 85 (1989).
1 Like my colleagues, I find it unnecessary to decide whether the set-
tlement agreement’s reservation clause otherwise preserved the dis-
charges of Provo and Runyon for decision.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 240
Harold Runyon about June or July 1995.2 Furthermore,
contrary to the majority, I would also find that the Re-
spondent lawfully discharged Provo for the reasons
stated below.3
1. Regarding Hinkle’s alleged interrogations, the evi-
dence shows that, in June, Hinkle briefly met with Provo
outside the Respondent’s facility. Hinkle asked whether
Provo was distributing union authorization cards and
literature on company time. Hinkle then told Provo that,
“We don’t have a union here. I don’t want a union.”
Hinkle had a similar conversation with employee Elmer
Harold Runyon in either June or July. After asking Run-
yon why he wanted a union and whether he was passing
out union cards and literature on company time, Hinkle
said that he did not want a union and added that nobody
else did either.
In rejecting my colleagues’ findings that Hinkle coer-
cively interrogated these employees, I stress that both
Provo and Runyon were open union supporters who en-
gaged in union activity on the Respondent’s property.
Hinkle merely asked, in Runyon’s case, why he sup-
ported the Union and asked both employees whether they
were violating the Respondent’s no-distribution rule that
the judge found was lawful. Hinkle’s alleged interroga-
tions were unaccompanied by any unlawful threats and
he clearly had the right under Section 8(c) of the Act to
inform the employees that he was against unionization.4
The Respondent’s questioning of open and active union
supporters in these circumstances and in the manner it
chose was noncoercive and, therefore, did not violate
Section 8(a)(1) of the Act.5
2. Provo, a janitor, initiated the organizing campaign
in April when he contacted the Union and was one of the
two leading union activists in the organizing campaign
that followed. My colleagues adopt the judge’s finding
that the Respondent seized on an incident in October (an
incident the judge found was neither an act of insubordi-
nation nor a refusal to follow a supervisor’s order) as a
reason to discharge Provo in retaliation for his union
activities. Yet, in doing so, they ignore the import of the
evidence that the Respondent had lawfully disciplined
Provo on three separate occasions, including twice for
insubordination, during the 8-month period preceding the
final act of misconduct that resulted in Provo’s dis-

2 All dates are in 1995, unless otherwise noted.
3 I join my colleagues in finding that the Respondent violated Sec-
tion 8(a)(1) when supervisor Stan Klieb threatened Provo with dis-
charge and other reprisals in retaliation for Provo’s union activities and,
in that context, interrogated him, and when Hinkle issued his letter,
dated July 11, 1995, accusing Provo of threatening and coercing other
employees.
4 Federal-Mogul Corp. v. NLRB, 566 F.2d 1245, 1251 (5th Cir.
1978); Graham Architectural Products v. NLRB, 697 F.2d 534, 541 (3d
Cir. 1983), rehearing and rehearing en banc denied, 706 F.2d 441
(1983), modified 113 LRRM 3111 (1983).
5 Rossmore House, 269 NLRB 1176 (1984), affd. sub. nom. Hotel
Employees Union, Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985);
Brigadier Industries Corp., 271 NLRB 656 (1984).
charge. Based on Provo’s work history and the October
incident in which Provo disobeyed a direct order by his
immediate supervisor, I find, contrary to the majority,
that Provo’s discharge was lawful.
Regarding Provo’s earlier discipline, the record shows
that, on May 1, Provo’s supervisor, Russell Gregg, issued
him a written reprimand for refusing to perform an as-
signed cleaning task. Under the heading “type of viola-
tion,” “disobedience” was listed. This reprimand, listed
as a second warning, states that Provo had received a
verbal warning in February, which was before the advent
of the Union, and also states that, if Provo refused to do a
cleaning task he was told to do, this would result in
Provo’s “[d]ismissal for third incident of insubordina-
tion.”6 It thus seems evident from the wording of the
May 1 reprimand that the February discipline also in-
volved a case of insubordination on Provo’s part.7
Thereafter, on August 4, Gregg issued Provo a second
written reprimand and a 3-day suspension for calling a
fellow employee a derogatory term. Gregg noted on the
reprimand that “[t]his verbal abuse cannot be tolerated”
and that “[t]his is his third warning.” But the “type of
violation” was described as “verbal misconduct,” not
disobedience, insubordination or a refusal to do an as-
signed task, and Provo was not discharged.8
On the day of his discharge, October 16, Provo began
working at 8 a.m. in the quality control room. First, fel-
low employee Josephine Engler, and then Supervisor
Gregg accused Provo of leaving trash in Engler’s work
area. Gregg ordered Provo to remove it. Although
Provo claimed that Engler had previously left trash on
his side and suggested that Gregg speak to her about it,
Gregg insisted that Provo remove the trash. Provo stated
that he would remove the trash after he finished his work
assignment in another area of the plant. By the time
Provo was ready to remove the trash, he discovered that
someone else had already done it. On seeing Gregg
about an hour later, Provo said that the trash was gone
and urged Gregg to speak to Engler about leaving trash
in Provo’s work area on other occasions.
6 The reprimand more fully stated “[b]e advised that if told to pre-
form [sic] a cleaning task and is [sic] refused to it, Joe Provo will re-
ceive the following disciplinary action A) Dismissal for third incident
of insubordination.”
7 Gregg testified generally that he had given Provo verbal warnings
for his refusal to do a job. Although the majority claims that the Re-
spondent did not establish the lawfulness of Provo’s discharge based in
part on its failure to introduce a copy of this February warning into
evidence, I note first that Provo’s May 1 written reprimand refers to the
February verbal warning. Second, there is no evidence that Provo
challenged the accuracy of this reference on his receipt of the May
written warning. And third, the General Counsel does not allege that
anything in the May 1 warning is untrue.
8 Neither the May nor August discipline was alleged to be unlawful
by the General Counsel. The judge, while noting both these disciplines,
did not note the context of the May discipline, i.e., that it was a second
warning and that Provo was told that a “third incident of insubordina-
tion” would result in his dismissal.
GREENFIELD DIE & MFG. CORP. 241
That afternoon, Gregg called Provo into his office and
said that Donna Sanderson, the Respondent’s human
resources manager, wanted to see Provo. Sanderson told
Provo that he was discharged and handed him two
documents, an Employer Warning Report and a Termina-
tion Report both signed by Gregg. The Warning Report
listed the “type of violation” as “refusing to do job that
he was told to do” and stated that the Respondent was
terminating Provo “for the reason that [he] has been told
that any refusal to follow orders given by his supervisor
would lead to dismissal.” The Termination Report gave
the “Reason for [Provo’s] Separation” as “. . . Standards
of conduct, insubordination. Threatening[,] intimidating
and interfering with employees.”
Although the judge found that the incident on October
16 that led to Provo’s termination “does not reveal a per-
suasive case of insubordination” nor was it “a refusal to
follow a supervisor’s order,” I find to the contrary that
Provo’s conduct was patently insubordinate. In this case,
Gregg ordered Provo to remove the trash and Provo did
not do it. Instead, Provo continued to perform other
work. Provo had previously received both a verbal and
written warning for similar misconduct. Furthermore,
Gregg had specifically warned Provo in the May 1 writ-
ten reprimand that another incident of insubordination
would result in Provo’s discharge. That is exactly what
occurred on October 16.9
The section of the Respondent’s employee handbook
entitled “STANDARDS OF CONDUCT” states in perti-
nent part: “Violations of the following rules which pro-
hibit the indicated behavior will, in the discretion of the
Company, result in disciplinary action up to and includ-
ing discharge.” The Respondent then lists 19 different
lettered “rules” that include: “b) Insubordination (dis-
obedience to authority or failure to follow instructions)”
and “s) Threatening, intimidating, coercing or interfering
with employees.” Here, the Respondent had disciplined
Provo twice for some form of disobedience and once for
verbal misconduct directed at another employee in the 8
months before Provo’s third incident of insubordination

9 My colleagues indicate that Provo did not refuse to pick up the
trash. The evidence shows, however, that Provo’s immediate supervi-
sor had given Provo a direct order to remove the trash immediately and
Provo did not follow it. My colleagues argue that Provo did follow the
order by “agree[ing] to pick it up as soon as he had completed his cur-
rent task.” But, Gregg’s order was to pick up the trash immediately,
and Provo’s insistence that he establish the timing was as insubordinate
as an outright refusal. To argue that he would have done it in his time
misses the point—Provo deliberately refused an order—signaling to
any observer that he—not Gregg—was in control.
Further, based on the judge’s finding that the Respondent previously
had tolerated Provo’s argumentativeness on the job, the majority infers
that the Respondent seized on this incident as the ground for terminat-
ing a union activist. I stress, contrary to my colleagues, that the Re-
spondent had previously disciplined Provo for insubordinate conduct
and that the judge’s finding that “[t]he Respondent had accepted
Provo’s argumentative nature in the past” did not forever insulate Provo
from further discipline for job misconduct once he engaged in union
activities.
in October that caused the Respondent to discharge
him.10 Although my colleagues’ stress, in finding that
Provo’s discharge violated Section 8(a)(3), that, in June,
Supervisor Klieb had threatened that the Respondent
could terminate Provo because of his union activities,
this conduct occurred fully 4 months before Provo’s dis-
charge. Thus, I find that Klieb’s remarks were too re-
mote in time on which to base a finding that the dis-
charge was discriminatory. And moreover Klieb was no
longer employed at the Respondent when Provo was dis-
charged.
I also reject the judge’s finding, which the majority
adopts, that the statement in Provo’s Termination Report
that the discharge was also for “[t]hreatening, intimidat-
ing, and interfering with employees” was a “clear refer-
ence” to Provo’s union activities because it is similar to
the language in the Respondent’s July 11 letter to the
Union referencing Provo’s union activities. First, the
language “[t]hreatening, intimidating, and interfering
with employees” in the Termination Report is simply a
close approximation of the Respondent’s Standards of
Conduct “s” which prohibits “threatening, intimidating,
coercing, or interfering with employees.” Further, the
Respondent points to evidence, not discussed by the
judge, that the reference is to certain of Provo’s alleged
conduct toward employee Engler.
In sum, I would find that the Respondent followed a
progressive system of discipline in this case by giving
Provo a verbal warning and two written reprimands be-
fore it terminated him on his fourth violation of the Re-
spondent’s work rules and his third incident of insubor-
dination within 8 months.11 The Respondent has demon-
strated in the circumstances here that it could no longer
tolerate Provo’s refusal to obey supervision.12 In its May
1 written warning to Provo, the Respondent had warned
him that another incident of insubordination would result
in his discharge and it is clear that the Respondent acted
forthwith on this warning when Provo disobeyed Gregg
on October 16. Because the evidence here shows that,
under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the
Respondent would have discharged Provo even in the ab-
sence of his union activities, I find that Provo’s discharge
was not violative of Section 8(a)(3) of the Act.13
10 As noted, the judge ignored the import of the evidence that
Gregg’s May 1 written warning to Provo for insubordination specifi-
cally stated that another incident of this conduct would result in Provo’s
termination “for [a] third incident of insubordination.”
11 Again, I note that the General Counsel has not argued that any of
Provo’s earlier discipline violated the Act.
12 St. Clair Memorial Hospital, 309 NLRB 738, 741 (1992) (em-
ployee Madden; no violation where refusal to perform work assignment
constituted insubordination); Circuit-Wise, 306 NLRB 766, 789 (1992)
(employee Agosto; no violation where refusal of direct order occurred
against backdrop of similar insubordination).
13 Cf. Smiths Industries Inc. v. NLRB, 86 F.3d 76 (6th Cir. 1996) (no
violation where shop steward disobeyed supervisor’s specific order that
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242

Dwight R. Kirksey, Esq. for the General Counsel.
Douglas A. Witters, Esq. (Pollard and Albertson, P.C.), of
Bloomfield Hills, Michigan, for the Respondent.
Paul Jacobs, Esq. of Detroit, Michigan for the Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
These cases were tried on May 29–30, 1996 in Detroit, Michi-
gan, upon a consolidated complaint, dated April 30, 1996. The
charge in Case 7–CA–37441 was filed by the Union, Local
247, International Brotherhood of Teamsters, AFL–CIO on July
17, 1995, as amended August 30, 1995. The charge in Case 7–
CA–37793 was filed by the Union on October 18, 1995, and
amended on January 19, 1996 and January 22, 1996. The
charge in Case 7–CA–37793 was filed by Reno P. Camilleri, an
individual. The allegations raise issues whether the Respon-
dent, Greenfield Die and Manufacturing Corporation, violated
Section 8(a)(1) of the National Labor Relations Act (the Act)
by threats, interrogations, and an attempt to impose a no-
solicitation rule and Section 8(a)(1) and (3) of the Act by dis-
charging its employees, Joseph Provo, Elmer Harold Runyon,
and Reno Camilleri because of the Union.
The Respondent filed timely answers, admitting the jurisdic-
tional elements of the complaint and denying the allegations of
unfair labor practices.
On the entire record in this case, including my observation of
the demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent, I make
the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Greenfield Die and Manufacturing Corpo-
ration, with an office and place of business in Canton, Michi-
gan, has been engaged in the production, welding, and the
manufacture of auto-related bracketry and sub-assemblies.
With gross revenues exceeding $500,000 and purchases of
goods valued in excess of $50,000 directly from points outside
the State of Michigan, the Company is admittedly an employer
engaged in commerce within the meaning of section 2(2), (6),
and (7) of the Act.
The Union, Local 247 International Brotherhood of Team-
sters, AFL–CIO is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
II. THE SETTLEMENT
On October 23, 1995, the Respondent and the Union entered
into an informal settlement in Case 7–CA–37441 which the
Regional Director approved on October 23, 1995. By Order of
January 25, 1996, he vacated and set aside the settlement. The
settlement involved a series of 8(a)(1) allegations (R. Exh. 1).
As an affirmative defense to the consolidated complaint and by
motion during the hearing, the Respondent objected to the order
setting aside the settlement on the grounds that the Company
had complied with the terms of the settlement agreement, and
that the discharges of employees Provo and Runyon preceded
the settlement date. The litigation, insofar as it involves preset-

steward was not to leave his work station on company time in order to
discuss grievance unless he put the grievance in writing).
tlement conduct, is therefore barred, according to the Respon-
dent.
The General Counsel submits that the Respondent violated
the terms of the settlement agreement, and that the settlement
agreement by express provision does not preclude the General
Counsel from prosecuting complaints or the Board from finding
violations with respect to matters which precede the date of the
approval of the agreement, even if these matters were known to
the General Counsel or readily discoverable.
The motion was taken under advisement and will be consid-
ered within the context of the record in this case.
III. THE UNCONTESTED FACTS
The Respondent correctly observed that the alleged discrimi-
natees, Provo and Runyon actively participated in concerted
protected activity in their attempt to organize the employees of
the Respondent during the months from May to early Septem-
ber, 1995. The Charging Party Camilleri did not participate in
any union activity and advised both Provo and Runyon that he
did not support the union. The Respondent also conceded that
the Respondent’s President, Don Hinkle, became aware of the
union organizing activities of Runyon and Provo, and that Hin-
kle was formally notified of the union organizing activity by a
letter, dated June 21, 1995 from the Union (G.C. Exh. 2). Even
prior to receiving the formal indication of the union organizing
activity, Hinkle approached both Provo and Runyon and in-
quired about their union activity. During a brief meeting with
Provo outside of a building at Respondent’s facility in early
June 1995, Hinkle asked whether Provo was involved in hand-
ing out union literature and authorization cards on company
time. Hinkle further stated: “We don’t have a union here. I
don’t want a union.” In June or July 1995, Hinkle had a brief
meeting with Runyon in Hinkle’s office . Hinkle asked Runyon
why he wanted a union and if he was passing out union litera-
ture on company time. Hinkle also said that the did not want a
union nor did anyone else. Hinkle wrote a letter dated July 11,
1995 to the Charging Party Local 247, suggesting that it remind
Provo of his legal obligations as a union organizer and claiming
that Provo had threatened and coerced other employees into
signing union authorization cards.
On October 16, 1995, Provo was discharged by his supervi-
sor. The Termination Report, dated October 16, 1995, contains
as reason: “Standards of Conduct, Insubordination, Threatening
Intimidating and Interfering with Employees” (G.C. Exh. 6).
An accompanying Employee Warning Report cites the type of
violation as “Refusing to do job he was told to do,” and con-
tains the following explanation: “I Russell Gregg told Joe
Provo to pick up and throw away trash piled up by office door
on die room side. Joe Provo refused and stated he was going to
see Don Hinkle about this matter” (G.C. Exh. 7).
On September 28, 1995, Harold Runyon was discharged, os-
tensibly, because of excessive absenteeism after he spent 2 days
in jail on charges of criminal misconduct (G.C. Exh. 10).
The Union filed charges regarding the discharge of Provo
and Runyon on October 18, 1995 in Case 7–CA–37793. Sub-
sequent to that, on October 23, 1995, the Regional Director had
approved the settlement in Case 7–CA–37441.
On October 30, 1995, the Respondent discharged its em-
ployee Reno Camilleri for excessive absenteeism after being
jailed from October 10 to October 30, 1995 on a drunk driving
conviction (G.C. Exh. 15). Camilleri filed a charge on March
GREENFIELD DIE & MFG. CORP. 243
7, 1996 in Case 7–CA–38265, alleging that the Company at-
tempted to conceal the true reason for the discharge of Runyon.
IV. ADDITIONAL FACTS AND DISCUSSION
Joseph Provo began his employment in April 1992 as a
building maintenance janitor. His duties consisted of cleaning
floors in certain assigned buildings, run the scrubber, wipe
around the presses, wax and clean bathroom floors in the build-
ings, paint when necessary, and remove the trash. He was one
of three maintenance employees. The others were Josephine
Engler and Dave Thurman. Provo’s supervisor was Russell
Gregg.
Provo’s union activities began in April 1995, when he con-
tacted Kenny Hollowell, the secretary-treasurer of Local 247
after talking to several employees, including Harold Runyon.
Provo, Runyon, and a third employee met with the union offi-
cial on May 15, 1995 where they signed union authorization
cards and received union material for distribution to the other
employees. Provo signed an Application for Membership in
Local Union No. 247 on May 15, 1995 (G.C. Exh. 16). He
distributed the union material in the parking lot and in several
plant buildings at lunch and during breaks.
In addition to his conversations about the Union with Hinkle,
Provo testified about conversations with Stan Klieb, a supervi-
sor. Provo testified that on June 5, 1995, Foreman Stan Klieb
spoke to him in the office at about 11 a.m. and the following
conversation occurred:

Yes. He said, “I understand you have priorities like
starting a union.” He says, “We don’t have a union here, I
don’t want one.” I said, “Stan,” I said, “are you threaten-
ing me?” He said, “No.” he says, “Take that as a warn-
ing.”

Provo recalled another conversation with Klieb on June 9,
1995 at his office (G.C. Exh. 44):

Stan said, “I understand you’re passing union cards out,” and
I said, “Who are my accusers?” and he said, “Oh, then you
are?” I said, “I have no comment one way or the other.”
. . . .

And he said, “Oh, you got a withdrawal card and your
priorities is changed like starting a union.” He says, “We
don’t have a union here, I don’t want one.” And he said,
“Don Hinkle said—” that’s the president of Greenfield
Die—he said that Don Hinkle said that he was—if the un-
ion got in here, he was going to not only subdivide the
company into separate entities, but he was going to fire me
and anyone else remotely concerned with the union.

On July 11, 1995 Provo was cleaning in the shipping and re-
ceiving area. Hinkle handed him an envelope with the com-
ment, “don’t read it now.” The document was the letter dated
July 11, 1995, written by Hinkle and addressed to Local No.
247, where the Company referred to certain employees who are
threatening and coercing other employees into signing union
cards (G.C. Exh. 4).
His shift began at 8 o’clock in the quality control room. On
the day of his discharge, Provo noticed a bag of trash outside
the press room in the early morning. Josephine Engler, a fellow
employee, accused him of leaving the trash on her side. Provo
denied that he had left the bag or that he would ever leave any
trash on her side of the building. At about the same, time his
supervisor Gregg approached him and accused him of leaving
trash on the press room side and ordered him to remove it.
Provo protested, saying that Engler had left trash on his side
before, and suggested Gregg speak to her about it. Gregg,
however, insisted that the trash be removed. Provo promised to
do so within a few minutes when he finished his present work
in the lab. Provo then saw his supervisor speaking to Engler.
When Provo was ready to remove the trash bag in the press
room, it was no longer there. Provo then proceeded to perform
his regular cleaning duties. One hour later, Provo saw his su-
pervisor and informed him that the trash was gone and urged
him again to do something about Engler leaving trash on his
side. At around 3:30 p.m. Gregg summoned Provo to his office
and told him that Donna Sanderson wanted to see him. She
handed him two pieces of paper, one an Employee Warning
Report and the other, the Termination Report. Provo voiced his
disagreement with the Company’s action and the reasons given
for the discharge.
Provo admitted that he had received two prior reprimands,
one on May 1, 1995 for refusing to clean up an oil spill and
another one on August 4, 1995 for engaging in verbal miscon-
duct, calling a fellow employee a derogatory term (G.C. Exhs.
5, 8, 9). In his testimony, Provo quarreled about the justifica-
tion for both disciplinary actions, insisting, for example, that
his verbal misconduct had been provoked by the other em-
ployee. During a meeting on August 4, where the discipline
was discussed by his supervisors Gregg said, “We’re giving
you three working days off. . . . If you don't like things the way
they’re run here. . . . take it to the union.”
Klieb, no longer employed by the Company, did not testify
in this case. The comments attributed to him are therefore un-
disputed. Not only is Respondent’s antiunion animus reflected
in Hinkle’s conversations with Provo, but Klieb’s comments
reflect the Company deep resentment about the employee’s
union activity. Klieb’s statements clearly constitute threats of
reprisals and threats of loss of jobs for those who engaged in
union activities. Moreover, Klieb’s questioning whether the
employee was trying to start a union and engaging in union
activities, was coercive. The questioning was accompanied by
threats of reprisals that the Company would be divided and that
the employees would loose their jobs. In addition, Hinkle’s
repeated questioning of Provo and his union activities was co-
ercive. He is the chief executive of the company, and he
clearly indicated that he was opposed to the employee’s con-
duct. These various threats about the Union and the coercive
interrogations about the employee’s union activities violate
Section 8(a)(1) of the Act .
Hinkle’s letter to the Union, a copy of which he handed to
Provo, informed him: “He must refrain from soliciting any
employee who is in working time and/or in a working area of
the plant as well as limiting his union activity to a time when
the is not on working time and/or in a working area of the plant
as well as limiting his union activity to a time when he is not on
working time in a working area of the plant.” (G.C. Exh. 4.)
This restriction was imposed by its terms only to solicitations
for or on behalf of the Union. Such a rule which prohibits only
union-related solicitations is presumptively unlawful. How-
ever, the employees’ handbook contains a general provision
entitled “Solicitations and Distributions of Literature” which
prohibits solicitation of any kind and for any cause on company
property during working time (R. Exh. 3). Respondent’s letter
may have been intended to express its general policy. I would
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 244
therefore dismiss the allegation, because the Respondent has
shown that it similarly prohibited other types of soliciting.
The letter threatens “discipline up through and including dis-
charge” for the employees’ union activity which the Respon-
dent characterized as threatening or coercive. I find such con-
duct to violate Section 8(a)(1) of the Act. With several viola-
tions of Section 8(a)(1) of the Act, it is not difficult to conclude
that the discharge of Provo was actually motivated by Respon-
dent’s union animus.
Klieb clearly threatened and warned Provo about the loss of
his job because of his union activity. His discharge occurred in
the fall of 1995 after his union activity during the spring and
summer became known to management. While the discharge
occurred several months later, the timing may be an indication
that the Respondent waited for a particular event or an act of
misconduct in order to effectuate a discharge. In any case, the
record does not reveal a persuasive case of insubordination.
Provo exhibited an undesirable habit of arguing with supervi-
sion about certain aspects of his job, in same instances presum-
ing to tell his foreman how to handle certain employment is-
sues. While it is true that Provo did not remove the trash im-
mediately, he did not outright refuse his supervisor’s order. He
first argued about it, stating that it was another employee’s
responsibility and reluctantly agreed to comply with the order
as soon as he had finished his current assignment. When he
was finally ready to remove the trash, it had already been done
by someone else. His conduct did not, as the Respondent urges
clearly amount to an act of insubordination or a refusal to fol-
low his supervisor’s order. Significantly, the Termination Re-
port shows as a reason for separation: “Threatening intimida-
tion and interfering with employees” (G.C. Exh. 6). This was a
clear reference to his union activity, as described in Hinkle’s
letter to the Union. I, accordingly, find that the Respondent
discharged Provo because of his union activity. The Respon-
dent had accepted Provo’s argumentative nature in the past. I
further find that the Respondent failed to show that Provo
would have been discharged even in the absence of his union
activity. Wright Line, 251 NLRB 1083 (1980).
The other union activist was Elmer Harold Runyon. He be-
gan his job on October 13, 1994, and worked until September
25, 1995. On September 28, 1995, the Respondent discharged
Runyon, ostensibly because of excessive absenteeism after he
spent 3 days in jail from September 26 to 28 (G.C. Exh. 10).
According to company records, Runyon had incurred two
prior Employee Warning Reports for absenteeism, one dated
July 27, 1995, and the other September 2, 1995 (G.C. Exhs. 11,
12). Runyon was otherwise regarded as a good employee
whose termination report rated his job performance as “good”
in all categories except “attendance” (G.C. Exh. 10). Runyon
admitted that Pykor had spoken to him on two occasions about
his excessive absences.1
Runyon’s union activity is admitted, as well as his visit to
Hinkle’s office. Hinkle asked him why he wanted a union and
said that neither he nor anyone else wanted a union. Prior to
that incident, Runyon and Provo had the conversation with
Supervisor Stan Klieb in the assembly building. They spoke to

1 I cannot accept the General Counsel’s argument that the warning
reports were not genuine. Runyon’s signatures did not appear unusu-
ally dissimilar considering that they were compressed in a small space
on the warning reports. Denying that he had signed the reports, Run-
yon admitted, however, that he had received two verbal warnings from
Pykor. Runyon did not impress me as entirely candid and honest.
Klieb because they had heard that he had been fired. Accord-
ing to Runyon, Klieb said that “Dan Hinkle would sub-divide
his business in [an] attempt to stop the union.”
The General Counsel argues even though Runyon was not a
“choirboy,” he was discharged because of his union activity.
The clear implication contained in Respondent’s threats was
loss of jobs for union activists. Between the president and su-
pervisor Klieb, the message was unequivocal, neither the Union
nor its supporters were tolerated at the facility. Provo and
Runyon were the most prominent supporters. Their discharges
occurred within a few weeks of one another, as soon as the
Respondent could find a suitable reason. In Runyon’s case, it
was his absenteeism. While the union activity was the underly-
ing motive, the Respondent has nevertheless shown that Run-
yon would have been discharged even in the absence of his
union activity. He had been warned previously that further
absences would not be tolerated. According to Wright Line, I
therefore dismiss the 8(a)(3) allegation with respect to Harold
Runyon.
The third individual discharged was Reno Camilleri. It is
agreed that Camilleri had no union connections. Nevertheless,
the General Counsel argues that Camilleri’s discharge for ex-
cessive absenteeism was based on the Respondent’s effort to
appear consistent with Runyon’s discipline. Camilleri was
discharged on October 30, 1995, after having served almost 3
weeks in jail immediately prior to October 30th.
Camilleri testified that he discussed his impending jail time
with the Company’s president in early September 1995. He
disclosed to him the nature of his legal problems, involving a
possible conviction for “driving under the influence.” Camil-
leri specifically asked if he would still have a job. Hinkle as-
sured him saying, “We’ll work everything out.” Hinkle con-
ceded in his testimony that he had a conversation with this em-
ployee about this subject, but he denied making a promise to
Camilleri about keeping his job. For the reasons more specifi-
cally discussed below, I have credited Camilleri’s testimony
that he indeed had received Hinkle’s assurance. He also caused
a letter, dated October 10, 1995 to be delivered by his father to
Respondent’s management requesting special leave for the
duration of 24 days (G.C. Exh. 14). On October 31, 1995 after
19 days of confinement, he returned to the Company and met
Pykor. He welcomed Camilleri and assured him that he had a
job. Camilleri changed into his work clothes, he punched in,
but was soon told to see Donna Sanderson. She sent him home,
because the situation had changed after Runyon’s discharge. In
the afternoon, Sanderson called him and told him to come to
the office and that he was no longer employed. Despite his
protestation to the effect that he had an agreement with Hinkle,
Sanderson handed him his termination notice because of exten-
sive time off (G.C. Exh. 15).
Sanderson testified that she has been the human resource
administrator since September 11, 1995, and that she was un-
aware of the employees’ organizational activities until Novem-
ber 1, 1995. She also testified that she initiated the termination
without any advice from upper management and in spite of
Camilleri’s letter delivered by his father requesting a leave of
absence. Sanderson’s testimony did not impress me for its truth
and veracity. She would have me believe that the owner and
chief executive had no authority to grant a leave of absence to
Camilleri or that Hinkle’s promises to Camilleri were totally
meaningless. I also find it implausible that she had no knowl-
edge of the union activities of some of its employees. Hinkle’s
GREENFIELD DIE & MFG. CORP. 245
testimony was equally incredible when he answered the ques-
tion whether he had the ability to grant leave to an employee,
“No, I do not.” My finding that their testimony lacked truth
and candor is also based upon their demeanor which I would
describe as not only testy and slightly annoyed but also well
rehearsed. For these reasons, I credit Camilleri and find that his
termination was union related, namely that his discharge was
prompted by Respondent’s intentions to conceal its antiunion
animus when it discharged Runyon and to appear consistent in
its application of the policy on absenteeism. In short, had it not
been for the pretextual reason for Runyon’s discharge, Camil-
leri would not have lost his job. He had no prior record of ab-
senteeism, and in the absence of the any union activity he
would still be employed.
CONCLUSIONS OF LAW
1. Greenfield Die and Manufacturing Corporation is an em-
ployer within the meaning of Section 2(2), (6), and (7) of the
Act.
2. Local 247, International Brotherhood of Teamsters, AFL–
CIO is a labor organization within the meaning of Section 2(5)
of the Act.
3. Considering the findings of violation of Section 8(a)(3)
and (1) of the Act, the General Counsel properly set aside the
Settlement Agreement dated October 23, 1995.
4. By threatening employees with reprisals, by threatening
them with discharge, and by threatening to subdivide the Com-
pany, because the employees were engaged in union activities,
the Respondent has repeatedly violated Section 8(a)(1) of the
Act.
5. By threatening disciplinary action up to and including
discharge for employees, because they engaged in union activi-
ties, the Respondent violated Section 8(a)(1) of the Act.
6. By coercively interrogating employees about their union
sympathies and activities, the Respondent violated Section
8(a)(1) of the Act.
7. By discharging Joseph Provo because of his union activi-
ties, the Respondent violated Section 8(a)(3) and (1) of the Act.
8. By discharging Reno Camilleri in order to conceal the
reason for the discharge of a union activist, the Respondent
violated Section 8(a)(3) and (1) of the Act.
9. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
Having discriminatorily discharged Joseph Provo and Reno
Camilleri, the Respondent shall be ordered to offer them rein-
statement to their jobs they previously performed or, if such
jobs no longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privileges
previously enjoyed. Further, the Respondent shall be ordered
to make them whole for any loss of earnings and other benefits,
computed on a quarterly basis from date of discharge to date of
proper offer of reinstatement, less any net interim earnings, as
prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
Respondent also shall be ordered to post a notice to employ-
ees, as set forth as the appendix to this decision.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended2
ORDER
The Respondent, Greenfield Die and Manufacturing Corpo-
ration, Canton, Michigan, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against any em-
ployee for supporting Local 247, International Brotherhood of
Teamsters, AFL–CIO, or any other union.
(b) Discharging or otherwise discriminating against any em-
ployee to conceal the reason for the discharge of a union activ-
ist.
(c) Threatening employees with reprisals, threatening them
with discharge, and threatening to subdivide the Company,
because the employees engaged in union activities.
(d) Threatening disciplinary action up to and including dis-
charge, because of the employees’ union activities.
(e) Coercively interrogating any employee about their sup-
port for or activities on behalf of the Union or any other labor
organization.
(f) In any like or related manner restraining or coercing em-
ployees in the exercise of the rights guaranteed them by Section
7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate policies of the Act.
(a) Within 14 days from the date of this Order, offer Joseph
Provo and Reno Camilleri 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.
(b) Make Joseph Provo and Reno Camilleri 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 rem-
edy section of the decision.
(c) Within 14 days from the date of this Order, remove from
its files any reference to the unlawful discharges, and within 3
days thereafter notify the employees in writing that this had
been done and that the discharges will not be used against them
in any way.
(d) Preserve and, within 14 days of a request, make avail-
able to the Board or its agents for examination and copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary
to analyze the amount of backpay due under the terms of this
Order.
(e) Within 14 days after service by the Region, post at its fa-
cility in Canton, Michigan, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices are custom-
arily posted. Reasonable steps shall be taken by the Respon-
dent to ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the pend-

2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 246
ency of these proceedings, the Respondent has gone out of
business or closed the facility involved in these proceedings,
the Respondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former employ-
ees employed by the Respondent at any time since July 17,
1995.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide
by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of their
own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected con-
certed activities.

WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Local 247, International Brotherhood
of Teamsters, AFL-CIO, or any other labor organization.
WE WILL NOT discharge or otherwise discriminate against
any of you to conceal the reason for the discharge of a union
activist.
WE WILL NOT coercively question you about your union
support or activities.
WE WILL NOT threaten you with reprisals or discharge or a
subdivided plant or loss of your jobs because you support or
engage in any activities on behalf of the Union or any other
labor organization.
WE WILL NOT threaten you with disciplinary action up to
and including discharge because of your union activities.
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 , within 14 days from the date of the Board’s Or-
der, offer Joseph Provo and Reno Camilleri full reinstatement
to their former jobs, or, if that jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their seniority
or any other rights or privileges previously enjoyed.
WE WILL make Joseph Provo and Reno Camilleri whole for
any loss of earnings and other benefits resulting from this dis-
charge, less any net interim earning, plus interest.

Dwight R. Kirksey, Esq. for the General Counsel.
Douglas A. Witters, Esq. (Pollard & Albertson, P.C.), of
Bloomfield Hills, Michigan, for the Respondent.
Paul Jacobs, Esq. of Detroit, Michigan, for the Charging
Party.
SUPPLEMENTAL DECISION
KARL H. BUSCHMANN, Administrative Law Judge. By
Order of June 6, 1997, the Board remanded this case to me for
(1) an analysis regarding the General Counsel’s revocation of
the October 1995 settlement agreement and (2) a clarification
of Elmer Runyon’s lawful discharge and further clarification of
Reno Camilleri’s unlawful discharge.
Turning initially to the second issue, because it has a bearing
on the former, I found in the underlying decision that the dis-
charge of Elmer Runyon presented a dual motive issue. The
General Counsel had presented a prima facie case that the Re-
spondent discharged Runyon because he, like Joseph Provo,
was a union activist. Runyon’s open support of the Union was
conceded by the Respondent. Don Hinkle, the Respondent’s
president, referred in his testimony to Provo and Runyon as the
two union supporters who harassed and bothered the other em-
ployees to sign union cards. The Respondent had threatened
the employees with discharge because of their union activities.
Clearly, Provo lost his job because he was the leading union
activist. The union activity was also the motivating factor in
Runyon’s discharge. However, the Respondent had success-
fully shown that it would have discharged Runyon even in the
absence of his union activity. Wright Line, 251 NLRB 1083
(1980).
Runyon had a history of absenteeism. He had received two
prior written reports, one dated July 27 and the second on Sep-
tember 2, 1995. He had also received two oral warnings and
been told that his absenteeism would no longer be tolerated.
After he was absent again, because he spent several days in jail,
the Respondent terminated his employment. Under these cir-
cumstances, I found that Runyon would have been discharged
even in the absence of his union activity.
With respect to Camilleri, the record shows that the Respon-
dent discharged Camilleri in an effort to show consistency with
Runyon’s discharge and to conceal any antiunion animus. Un-
like Runyon, Camilleri was not a union supporter, but like
Runyon, Camilleri was absent from work because of time spent
in jail. Camilleri had no prior history of absenteeism and until
the time of Runyon’s discharge on September 28, 1995, Camil-
leri had an understanding with the Company’s president, Don
Hinkle, that he would still have a job after his 19 days of con-
finement. Don Hinkle had assured him in advance that every-
thing would be worked out. In early October, Camilleri made
a written request for special leave of absence. On October 30,
1995, when Camilleri reported for work,1 Supervisor Pykor
welcomed him upon his return. However, in a sudden turn of
events, Donna Sanderson, human resource administrator,
handed Camilleri a termination notice for absenteeism. As
explained in the underlying decision, I did not credit the testi-
mony of Don Hinkle generally, and, in particular his testimony
that he, the owner and president of the Company, lacked the
authority to grant a leave of absence to an employee. I also
discredited the testimony of Sanderson, especially the state-
ments, that she had the sole and exclusive authority over per-
sonnel decisions and was in charge of the Company’s labor
policy but that she was totally unaware of the employees’ or-
ganizational drive or the pendency of the unfair labor practice
charges, when she discharged Camilleri. The testimony of
Supervisor Henry Pykor was totally unreliable. His responses

1 Camilleri testified that he returned on October 31, but the termina-
tion report was dated October 30, 1995
GREENFIELD DIE & MFG. CORP. 247
indicated that he knew little or nothing about the union activity
or the employees’ involvement with the Union. I credited
Camilleri’s testimony and his recollection that Hinkle had made
a commitment with him that he would keep his job.
The record shows why the Respondent did not keep its
promise. In a conversation with Pykor on the day Camilleri
reported for work, Pykor said: “We got a little snag here. We
got to discuss this over with our attorneys and we have a meet-
ing about you, because of what happened with Harold” (Tr.
183). Camilleri also spoke to Hinkle pleading for his job. Hin-
kle told him to go home and wait for a decision. On the follow-
ing day, Camilleri called Hinkle who told him that the dis-
charge was final but that Camilleri could reapply “after this
thing deal blows over” (Tr. 190). I accordingly concluded that
the sudden turnabout in the Respondent’s attitude was its at-
tempt to appear consistent with the treatment accorded Runyon
when he was discharged a month earlier for excessive absentee-
ism following several days in jail.
The fact that an employee is not a union member and had not
engaged in any union activity does not per se immunize an
employer’s adverse treatment of that employee from answer-
ability under the Act. Dayton Hudson Department Store, 324
NLRB 33 (1997). Significantly, the Board has held that the
discharge of a nonunion employee to cover up the discharge of
an unwanted employee violates the Act. Jack August Enter-
prises, 232 NLRB 881, 900 (1977), enfd. 583 F.2d 575 (1st Cir.
1978).
The mere fact that the Respondent has proved affirmatively
that he would have disciplined Runyon notwithstanding the
Respondent’s antiunion animus under Wright Line, supra, does
not vitiate or void the Respondent’s antiunion animus, nor
should it avoid a finding that the Respondent intended to con-
ceal its actions against Runyon by also discharging Camilleri.2
Camilleri had no prior history of absenteeism, nor was there
any hint that his job was in jeopardy until the day of his return
on October 30. To the contrary, Camilleri had Hinkle’s assur-
ance and did everything to keep his job. The Respondent’s
change in attitude was a clear attempt to treat Camilleri and
Runyon equally after each spent several days in jail.
Turning to the first area of concern in the Board’s remand
Order, I found that the General Counsel properly set aside the
settlement agreement of October 23, 1995, and that the Re-
spondent’s objections to the Order of January 25, 1996, should
be overruled. The Respondent’s argument that it complied with
the terms of the agreement and that any litigation involving
presettlement conduct, including the discharges of Provo and
Runyon, is barred, ignores the General Counsel’s arguments
that the Respondent’s compliance with the settlement can only
be determined after a hearing on the matter and that the settle-
ment did not encompass the 8(a)(3) and (1) allegations. The
General Counsel argued at the hearing that the Respondent had
violated the terms of the settlement and that the agreement
expressly authorized findings of violations in other cases. The
record shows that the settlement was executed on October 23,
1995. Clearly, the discharge of Camilleri in violation of Sec-

2 The reference to “pretextual” discharge in the underlying decision
is concededly confusing.
tion 8(a)(1) and (3) of the Act occurred subsequently, namely
on October 30, 1995.
Moreover, the agreement solely covered the independent
8(a)(1) allegations as contained in the charges filed by the Un-
ion on July 17, 1995, as amended on August 30, 1995, in Case
7–CA–37441. The resulting complaint issued on September 8,
1995. The charges involving the discharges of employees
Provo and Runyon in Case 7–CA–37793 were filed subse-
quently, namely on October 18, 1995, and amended on January
19 and 22, 1996. On January 25, 1996, the Regional Director
issued an order setting aside the settlement in Case 7–CA–
37441 containing the 8(a)(1) allegations, charging that the Re-
spondent had violated the terms of the agreement in that case.
He simultaneously issued an order consolidating that case with
the complaint in Case 7–CA–37793 containing the 8(a)(3) and
(1) allegations dealing with the discharges of Provo and
Runyon. The original charges in the second case preceded the
settlement date of the first case by 5 days, but the charges were
amended subsequent to the October 23 date.
“The Board has long held that a ‘settlement agreement may
be set aside and unfair labor practices found based on preset-
tlement conduct if there has been a failure to comply with the
provisions of the settlement agreement or if postsettlement
unfair labor practices are committed.’” Twin City Concrete, 317
NLRB 1313 (1995). In the instance case, it is clear that the
settlement was properly set aside for both reasons, the Respon-
dent violated the terms of the agreement and it committed un-
fair labor practices after the settlement. Camilleri’s discharge
occurred after the settlement and the Respondent violated set-
tlement agreement by the discharges of employees in violation
of Section 8(a)(1) of the Act, in spite of its promise in the
agreement not to interfere with the employees’ Section 7 rights.
Although a settlement agreement ordinarily disposes of all
presettlement conduct known to the General Counsel, the set-
tlement agreement provides, inter alia:

SCOPE OF THE AGREEMENT — This Agreement settles
only the allegations in the above-captioned case(s), and does
not constitute a settlement of any other case(s) or matters. It
does not preclude persons from filing charges, the General
Counsel from prosecuting complaints, or the Board and the
courts from finding violations with respect to matters which
precede the date of the approval of this Agreement, regardless
of whether such matters are known to the General Counsel or
are readily discoverable. The General Counsel reserves the
right to use the evidence obtained in the investigation and
prosecution of the above-captioned case(s) for any relevant
purpose in the litigation of this or any other case(s), and a
judge, the Board and the courts may make findings of fact
and/or conclusions of law with respect to said evidence.

The parties thereby agreed to reserve from the settlement
certain issues. The 8(a)(1) settlement, basically involving ver-
bal misconduct, clearly did not encompass the 8(a)(3) allega-
tions contained in the second case, where the Respondent re-
taliated against the employees. Ratliff Trucking Corp., 310
NLRB 1224 (1993).
I accordingly found that the General Counsel’s order was
appropriate in all respects.