International Door

National Labor Relations Board - Board Decisions

Jun 28, 1991

303 N.L.R.B. 582 (N.L.R.B. 1991)

582
303 NLRB No. 94
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We note that at sec. III, ‘‘Complaint Allegation Analysis,’’ C, par 5, the
first sentence should state in relevant part, ‘‘and by its unilateral implementa-
tion of work rules in December 1988 and its discharge of John Cross insofar
as it was in pursuance of those rules.’’
2 In Gissel, the Court identified two categories of cases in which a bar-
gaining order would be appropriate. The first involves ‘‘exceptional cases’’
marked by unfair labor practices that are so ‘‘outrageous’’ and ‘‘pervasive’’
that traditional remedies cannot erase their coercive effect with the result that
a fair election is rendered impossible. The second category involves ‘‘less ex-
traordinary cases marked by less pervasive practices which nonetheless still
have the tendency to undermine majority strength and impede the election
processes.’’ The Court stated that in the latter situation a bargaining order
should issue where the Board finds that ‘‘the possibility of erasing the effects
of past practices and of ensuring a fair election (or a fair rerun) by the use
of traditional remedies, though present, is slight and that employee sentiment
once expressed through cards would, on balance, be better protected by a bar-
gaining order . . . .’’ Id. at 613, 614–615.
International Door, Inc. and Local 508, Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL–CIO. Cases 7–
CA–28487, 7–CA–28496(1), and 7–CA–28783
June 28, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 2, 1990, Administrative Law Judge
Thomas R. Wilks issued the attached decision. The Re-
spondent filed exceptions 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 decision and the
record in light of the exceptions and brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order as modi-
fied.
The judge found that, under the authority of NLRB
v. Gissel Packing Co., 395 U.S. 575 (1969), a bar-
gaining order is an appropriate remedy in this pro-
ceeding. In its exceptions, the Respondent contends,
inter alia, that the judge erred in finding its conduct
‘‘outrageous’’ and ‘‘pervasive’’ under Gissel and it ar-
gues that it has not even been shown that its conduct
was serious enough to fit the second Gissel category
for the issuance of a bargaining order.2 In addition, the
Respondent contends there has been substantial turn-
over in its work force that should preclude a Gissel
bargaining order. We reject these various arguments
raised by the Respondent.
In rejecting these arguments, and in affirming the
judge’s issuance of a bargaining order, we first find it
unnecessary to determine whether the Respondent’s
unfair labor practices are within the first or second cat-
egory for the issuance of bargaining orders as delin-
eated by the Gissel Court for they are, regardless of
category, quite clearly sufficient to warrant a bargain-
ing order. Thus, we note that the Union had obtained
a card majority of 9 employees in a unit of 13 by Sep-
tember 23, 1988, and made a demand for recognition
on the Respondent which was refused on September
26, 1988. The Respondent then immediately began a
series of unfair labor practices designed to weaken and
destroy the employees’ support for the Union. In recit-
ing the litany of unfair labor practices in which the Re-
spondent engaged, it is well to remember that, with
one exception, these unfair labor practices were all
committed by either the Respondent’s president, John
Kaounas, or its vice president, Gus Kaounas. John and
Gus Kaounas are brothers and are the joint owners of
the Respondent. John Kaounas’ unfair labor practices
were more extensive than his brother’s and they began
the very day the Respondent received the demand for
recognition. John Kaounas that day convened an em-
ployee meeting at which he (1) expressed his adamant
opposition to the union representation of the employ-
ees and implied the futility of efforts for union rep-
resentation because he would not allow it; (2) threat-
ened employees with more onerous work rules within
the context of a threat to effect a more rigidly dis-
ciplined work environment in the event the employees
chose representation by a union; (3) made an implied
threat of plant closure if the employees chose union
representation; and (4) peremptorily discharged three
employees (who were offered reinstatement the next
day) for union-related reasons. Then, at another em-
ployee meeting, on September 28, John Kaounas again
conveyed to employees the futility of union representa-
tion by telling them that the Respondent would never
permit such representation and further threatened to re-
strict production in order to limit available work only
to nonunit persons. Kaounas further threatened busi-
ness closure if the employees chose the Union. After
that meeting, one of the employee card signers came
to John Kaounas and told him of the various card sign-
ers. Kaounas then convened a second meeting on Sep-
tember 28, but this one of card signers only. The judge
found that Kaounas there repeatedly demanded a
‘‘public confession of union representation support’’
and successfully solicited the employees to repudiate
and withdraw their previously signed authorization
cards. Further, at this meeting, the Respondent’s prod-
uct shop foreman Norwood unlawfully interrogated the
employees by demanding public disclosure of their
‘‘ringleader.’’ In response to these actions of the Re-
spondent, the Union filed unfair labor practice charges
but the Respondent continued its barrage of unfair
labor practices. The judge found that, in mid-Novem-
ber, the Respondent promised employees Wells and
Cross increased benefits and wages if the employees
rejected the Union; threatened the employees with dis-
583INTERNATIONAL DOOR
3 See Indiana Cal-Pro, Inc. v. NLRB, supra, which had many of the same
unfair labor practices as involved here though not nearly as many in number.
4 See Highland Plastics, 256 NLRB 146, 147 (1981).
5 Salvation Army Residence, 293 NLRB 944, 945 (1989), enfd. mem. 923
F.2d 846 (2d Cir. 1990).
6 At the outset, we note that the Respondent argues that, by the time that
Cross was unlawfully discharged in January 1989, the entire bargaining unit
had turned over. The record does not conclusively support that assertion. There
was testimony that, because of significant turnover, the Respondent might hire
150–200 employees each year for the unit positions. There was also evidence
that by time of the hearing at least four card signers had voluntarily left the
Respondent’s employ. The judge characterized the situation by finding that in
January 1989 ‘‘through a combination of fortuitous resignations and its unlaw-
ful discharge of Cross, [the Respondent had] achieved the reduction of known
union card signers to a comfortably safe minority.’’ Although the Respondent
asserts that ‘‘Cross admitted that by January 5, 1989 he was the last employee
who had supported the Union,’’ Cross’ testimony shows he then told the
Kaounas brothers that they ‘‘want[ed] me out of here because I’m about the
last one.’’ Thus, we do not find that the record shows that there was 100 per-
cent bargaining unit turnover when Cross was fired but the record does show
that the Respondent experiences significant turnover in its bargaining unit po-
sitions.
charge because of the employees’ union activity; and
coercively interrogated the employees by demanding to
know why they were instigating union organizing ac-
tivities. The judge also found that, in the fall and win-
ter of 1988, the Respondent unlawfully told the em-
ployees that, other than new employees, the employees
would not receive wage increases and would not be
granted discretionary merit raise reviews to which past
practice and policy entitled them because of the de-
mand for union recognition and the then-pending
Board proceedings. Then, in December 1988, the Re-
spondent distributed an employee handbook in direct
response to the employees’ union activities. The judge
found that it and a newly instituted plant confinement
rule violated the Act. And, in January 1989, the Re-
spondent fired employee Cross in violation of Section
8(a)(3) and (1) of the Act and further violated the Act
through Gus Kaounas’ threat to Cross to do him ob-
scene bodily harm for seeking the assistance of the
Union and the Board.
The mere recitation of these myriad unfair labor
practices, which commenced so rapidly after the
Union’s demand for recognition, puts into grave doubt
the Respondent’s assertion that ‘‘even if proven, [its
unfair labor practices] have not precluded the possi-
bility of a fair election.’’ Thus, we note that among its
unfair labor practices, the Respondent committed a
number of violations of an extremely serious nature. In
Koons Ford of Annapolis, 282 NLRB 506, 508 (1986),
the Board indicated (in words particularly apt here):
In determining whether a bargaining order is
appropriate, in addition to examining the severity
of the violations committed, the Board also exam-
ines the present effects of the coercive unfair
labor practices that would prevent the holding of
a fair election.
It is highly significant that many of the viola-
tions present here were of an extremely serious
nature. Both the courts and the Board have long
recognized that threats of job loss (i.e., plant clo-
sure, discharge, and layoff) because of union ac-
tivity are among the most flagrant interferences
with Section 7 rights and are more likely to de-
stroy election conditions for a lengthier period of
time than other unfair labor practices. Indeed, the
natural and likely result of the threats found here
was to reinforce the employees’ fear that they
would lose employment if they persisted in their
union activity. [Footnotes omitted.]
One of the Respondent’s frequent unfair labor prac-
tices was the threat of plant closure. The Sixth Circuit
in Indiana Cal-Pro, Inc. v. NLRB, 863 F.2d 1292,
1301–1302 (1988), enfg. 287 NLRB 796 (1987), indi-
cated that ‘‘[c]ourts have repeatedly held that in view
of an employee’s natural interest in continued employ-
ment, threats of plant closure are ‘among the most fla-
grant’ of unfair labor practices,’’ citing, inter alia,
Gissel, 395 U.S. at 611 fn. 31.
But, in issuing the bargaining order here, we have
not looked solely to the quality and number of the un-
fair labor practices that the Respondent committed. We
have also considered the small size of the unit in-
volved. Thus, the judge found that the Respondent em-
ployed an average of about 12–14 persons in unit work
and he found 13 persons in the unit at the time of the
demand for recognition. We have also considered that
these unfair labor practices were committed by the Re-
spondent’s top-level management rather than lower-
level supervisors. Given the entirety of the cir-
cumstances here, we conclude a bargaining order is
fully warranted for the unfair labor practices we have
found.3
The Respondent argues, however, that the Board
should consider whether substantial turnover of em-
ployees in the bargaining unit has sufficiently cured
the effect of any employer misconduct and allows for
the holding of a fair election. The Board has specifi-
cally held, however, that ‘‘the validity of a bargaining
order depends on an evaluation of the situation as of
the time the unfair labor practices were committed
. . . .’’4 Thus, ‘‘the evidence the Respondent proffers
regarding changes of this nature [i.e., a change in the
composition of the unit] . . . [is] irrelevant . . . when
assessing the propriety of issuing a Gissel bargaining
order [citations omitted].’’5
Even assuming the relevance of the evidence of
turnover that the Respondent relies on, we find this
evidence would not remove the basis for issuing a bar-
gaining order for the following reasons.6 First, because
the misconduct in this case was committed by the Re-
spondent’s highest officials and was directed at vir-
tually every employee in the bargaining unit, we find
it foreseeable that new employees would learn of the
past practices and be deterred from seeking union rep-
584 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 See Amazing Stores, 289 NLRB 163 fn. 2 (1988), enfd. 887 F.2d 328, 331
(D.C. Cir. 1989).
8 Salvation Army, supra; Amazing Stores v. NLRB, supra, 887 F.2d at 331.
9 Salvation Army, supra.
10 Action Auto Stores, 298 NLRB 875, 875–876 (1990) (quoting Indiana
Cal-Pro, Inc. v. NLRB, supra at 1301–1302).
11 The Respondent argues that Cross’ January 5, 1989 discharge is vital to
the General Counsel’s seeking a bargaining order and that significant em-
ployee turnover had occurred before his discharge. It appears to argue that al-
ready-departed employees could thus not have been affected by his discharge
and that the unfair labor practices that they earlier were exposed to were insuf-
ficient to warrant a bargaining order. We note, however, that in light of the
Respondent’s extensive unfair labor practices an order to bargain would have
been appropriate even in the absence of Cross’ firing. See, e.g., Indiana Cal-
Pro, Inc. v. NLRB, supra.
resentation.7 Second, the Kaounas brothers are still in
charge of the Respondent’s operations. The breadth of
their unfair labor practices shows that the Respondent,
through them, is deeply committed to its antiunion po-
sition and that it is not likely to retreat from such posi-
tion.8 In short, their conduct demonstrates that they are
likely to renew their unlawful tactics among current or
future employees to keep out the Union or any other
labor organization as an employee bargaining rep-
resentative. Moreover, the Kaounas brothers’ continued
presence ‘‘can serve only to reinforce in the minds of
the employees the lingering effects of the Respond-
ent’s violations.’’9 Additionally, we note that the viola-
tions that were committed were ‘‘numerous and perva-
sive in nature and that many of them were ‘hallmark’
violations, including threats of discharge and numerous
threats of plant closure, which are ‘among the most
flagrant’ of unfair labor practices.’’10
For all the above reasons, we agree with the judge
that a Gissel bargaining order is warranted here.10 We
also find that the Respondent’s unfair labor practices
warrant a broad cease-and-desist order. Hickmott
Foods, 242 NLRB 1357 (1979). We shall modify the
judge’s recommended Order accordingly.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Inter-
national Door, Inc., Canton, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Substitute the following for paragraph 1(m).
‘‘(m) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.’’
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 express to our employees the futility
of union representation efforts by telling them we will
in no way permit union representation.
WE WILL NOT threaten employees with more oner-
ous work rules, a more strict enforcement of pre-
existing rules, or a more rigidly disciplined work envi-
ronment if they choose union representation, nor effec-
tuate such threats to discourage their union activities
and desires for union representation.
WE WILL NOT threaten employees with plant closure
if they choose union representation.
WE WILL NOT threaten to reduce production and
limit available production work to persons not in the
appropriate collective-bargaining unit, and thus cause
layoffs.
WE WILL NOT coerce employees to repudiate and
withdraw their authorizations for union representation.
WE WILL NOT coercively interrogate employees as to
their own or other employees’ union activities or union
support.
WE WILL NOT discharge employees by discrimina-
tory enforcement of work rules or by enforcement of
unlawfully promulgated work rules or because of their
union activities and sympathies or because of other
concerted activities protected by the Act in order to
discourage such activities by our employees.
WE WILL NOT promise to employees increased bene-
fits and wages if they reject union representation.
WE WILL NOT threaten to withhold merit wage in-
creases from employees that would otherwise have
been granted were it not for the pendency of a demand
for union recognition and pendency of related Board
proceedings.
WE WILL NOT refuse to review employees’ eligi-
bility for merit raises, on an employee request accord-
ing to past practice, because of the pendency of a de-
585INTERNATIONAL DOOR
mand for union recognition and pendency of related
Board proceedings.
WE WILL NOT threaten employees with bodily injury
because they sought the assistance of a labor organiza-
tion and the process of the Board.
WE WILL NOT refuse to recognize and bargain with
our employees’ designated bargaining agent for the ap-
propriate unit of employees nor unilaterally institute
new work rules nor unilaterally effectuate stricter en-
forcement of old work rules, without notice and bar-
gaining opportunity to their bargaining agent.
WE WILL NOT in any other manner interfere with,
restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL recognize and, on request, bargain with
Local 508, International Association of Bridge, Struc-
tural and Ornamental Iron Workers, AFL–CIO as the
exclusive bargaining representative of employees in the
appropriate unit and, if agreement is reached as to
wages, hours, and other terms and conditions of em-
ployment, embody the understanding in a signed writ-
ten document. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, including truck drivers,
employed by us at our plant located at 8001
Ronda, Canton, Michigan; but excluding elec-
tricians, office clerical employees, guards and su-
pervisors as defined in the Act.
WE WILL rescind new work rules unilaterally imple-
mented in December 1988, and return the status quo
ante with respect to the enforcement of old work rules
and the manner of discipline for violation of old rules
prior to September 26, 1988.
WE WILL immediately reinstate our past practice of
reviewing an employee’s eligibility for a merit wage
increase, when the employee requests one in accord-
ance with past practice, and grant such wage raise re-
quest, if deemed meritorious, after bargaining with the
above-named Union as to the amount of each wage
raise, and grant retroactive increases to John Cross and
any other employee whom it would have otherwise
given raises on a merit review had we not refused that
employee’s request for a merit review because of the
pendency of a demand for union recognition and Board
proceedings.
WE WILL offer John Cross immediate and full rein-
statement to his former position or, if that position no
longer exists, to a substantially equivalent position,
without prejudice to his seniority and other rights and
privileges, and make whole John Cross, Tony
Gargarilla, and Ron Kinney for any loss of earnings
suffered as a result of our unlawful conduct, with in-
terest.
WE WILL notify each of them that we have removed
from our files any reference to his discharge and that
the discharge will not be used against him in any way.
INTERNATIONAL DOOR, INC.
John Ciaramitaro, Esq., for the General Counsel.
Lois Blaesing, Esq., of Birmingham, Michigan, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. The trial
of the issues this consolidated proceeding was held before
me in Detroit, Michigan, on April 10, 11, and 12, 1989, pur-
suant to unfair labor practices filed and/or amended accord-
ing to numerical sequence on September 27 and 29, 1988,
January 9 and February 8, 1989, by Local 508, International
Association of Bridge, Structural and Ornamental Iron Work-
ers AFL–CIO (the Union), against International Door, Inc.
(Respondent), and pursuant to complaints or amended com-
plaints and orders of consolidation in those cases issued by
the Board’s Regional Director on November 1, 1988, and
February 8 and March 2, 1989.
The Respondent is alleged by those complaints to have
committed unfair labor practices consisting of multitudinous
acts of interference with employee 8(a)(1) rights, various dis-
criminatory acts violative of Section 8(a)(1) and (3) and a re-
fusal to recognize and bargain with the Union as employee
majority bargaining agent designated by employee executed
authorization cards in violation of Section 8(a)(5) of the Act.
Respondent timely filed answers to the complaints by
which it denied the Union’s designated majority bargaining
agent status and denied the commission of the unfair labor
practices.
The parties were given full opportunity to introduce rel-
evant, material evidence, to examine and cross-examine wit-
nesses, and to argue orally. The parties elected to file
posttrial briefs. The General Counsel’s memorandum brief
and Respondent’s 75-page posttrial brief were both received
on July 5, 1989.
On the entire record and briefs, and my observation of the
witnesses’ demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT’S BUSINESS
Respondent is, and has been at all times material, a cor-
poration duly organized under and existing by virtue of the
laws of the State of Michigan where it has maintained its
principal office and place of business at 8001 Ronda in the
City of Canton, herein called the Canton facility, and is en-
gaged in the manufacture, nonretail sale, and distribution of
industrial doors and related products. Respondent’s plant lo-
cated in Canton, Michigan, is the only facility involved in
this proceeding. During a yearly period which is representa-
tive of its operations during all times material hereto, Re-
spondent, in the course and conduct of its business oper-
ations, purchased and cause to be transported and delivered
to its Canton plant, goods and materials valued in excess of
586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
$50,000, which were transported and delivered to its plant in
Canton, Michigan, directly from points located outside the
State of Michigan.
It is admitted, and I find, that Respondent is now, and has
been at all times material herein, an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. LABOR ORGANIZATION
It is admitted, and I find that, the Union is, and has been
at all times material, a labor organization within the meaning
of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
Respondent was formed in 1974 by the brothers, John and
Gus Kaounas, president in charge of general administration
and vice president in charge of production, respectively, and
joint owners. At two prior locations, initially under a dif-
ferent name and finally at the Canton facility, it has em-
ployed an average of about 12–14 persons in production
work in its plant, 6 persons in office duties and an indetermi-
nate number of delivery and installation employees, the last
of whom have been represented for several years by an un-
identified local of the International Association of Bridge,
Structural and Ornamental Iron Workers, AFL–CIO. The
production employees were unrepresented and were the sub-
ject of the Union’s organizing activities in late 1988. The
record is silent as to whether Respondent’s past bargaining
relationship with the installer’s bargaining agent was conge-
nial or hostile. No evidence was introduced of past union
animus.
In addition to the brothers Kaounas, Respondent’s super-
visory hierarchy is supplemented by Production Shop Fore-
man Roger Norwood, an admitted supervisor and agent as
defined by the Act. Employed in the plant also is John
Pappas, a skilled electrician who is subordinate to an uniden-
tified plant engineer or directly to Gus Kaounas, and who
works independently and in isolation from production work-
ers. Jimmy Kaounas, 16-year-old son of Gus Kaounas, was
also employed as part-time electrician.
The parties stipulated the following as an appropriate col-
lective-bargaining unit:
all full-time and regular part-time production and main-
tenance employees, inclulding truck drivers employed
by the employer at its plant vacated at 8001 Ronda,
Canton, Michigan, but excluding electricians, office
clerical employees, guards and supervisors as defined in
the Act.
At the end of September 1988, employed in the aforesaid
unit were Mike Bazman, John Cross, Richard Fiddie, Tony
Gargarilla, Ron Kinney, Nick Kaounas (brother of John and
Gus), Brian Kutz, David Privett, Joey Rosbury, Terry
Stoneburgh, Charles Wells, and two unidentified helpers, ac-
cording to unrefuted testimony of General Counsel’s wit-
nesses. It is also undisputed that although new unit employ-
ees start out as unskilled helpers and are subsequently trained
to more skilled tasks as assembly and welding there are no
formal job classifications within the unit.
A. Union Organizing
On the telephone invitation of an unidentified employee,
a union representative, George Clark, testified that at a
postwork shift meeting at a public park, he discussed union
representation with and obtained executed union representa-
tion authorization cards from seven unit employees, i.e.,
Cross Wells, Stoneburgh, Fiddie, Kinney, Kutz, and Privett.
These cards were adduced into evidence, without objection,
upon the identification and authentication testimony of Clark,
Wells, Stoneburgh, and Cross. Respondent does not dispute
the authenticity of those union cards but in the brief makes
reference to testimonial admission of some beer consumption
at the meeting. There is no evidence of actual intoxication
of any card signer at the time of card execution nor any
other mental dysfunction.
John Cross, a fitter-welder of 3 years’ employment, testi-
fied that he first became aware of union organizing efforts
‘‘somewhere in the middle of’’ September 1988 when he had
heard that Fiddie had contacted a union agent. Cross testified
that Wells notified him of the September 23 meeting with
Clark and that the following sequence of events occurred.
Cross drove Wells to the latter’s home where they encoun-
tered Mike Bazman who had not attended the meeting.
There, on Cross’ solicitation, Bazman read and signed an au-
thorization card which subsequently was placed in Clark’s
custody. Cross admitted that prior to signing the card,
Bazman had consumed ‘‘a few’’ beers. Whether he was ine-
briated is not established.
Also after the meeting, according to the testimony of Terry
Stoneburgh, a hand saw operator-welder, he met privately
with unit employee Joey Rosbury at his home where the lat-
ter, also on solicitation, read and executed an authorization
card which subsequently was delivered to Clark. Bazman’s
and Rosbury’s cards were received into evidence without ob-
jection and were authenticated by Cross and Stoneburgh.
There is no challenge as to the authenticity nor validity of
these two cards, except Respondent’s unfounded suggestion
that Bazman had been inebriated.
All nine cards were properly authenticated and clearly
facially designate the Union as bargaining agent. Aside from
the unfounded suggestions of inebriation, there is no other
challenge to their validity nor to the General Counsel’s claim
that as of Friday evening, September 23, 1988, a majority of
unit employees had, by card execution, designated the Union
as exclusive collective-bargaining agent.
On behalf of the Union, Clark and his associate, Alan
Craig, in a personal mid-morning visit with John Kaounas at
the plant office, claimed that a majority of unit employees
designated the Union as bargaining agent, and they therefore
asked for Respondent recognition of such as a fact and for
commencement of bargaining. According to Clark, John
Kaounas asked and was refused information as to the specific
number of employees who did ‘‘sign up’’ for the Union and
then stated, ‘‘So the workers wanted a union. No way. No
way.’’
According to Clark, nothing else was said. Craig did not
testify. According to John Kaounas, when faced with the ma-
jority status claim which was explicitly stated to be in the
form of authorization cards, he asked for ‘‘proofs’’ of such
claim, including ‘‘names’’ of employees but was refused any
information. Kaounas testified that he found such claim
587INTERNATIONAL DOOR
‘‘hard for me to believe [and] it’s kind of a little shocking
here.’’ He testified that he responded:
Well, somebody ought to tell me something. You came
in my office. You’re telling me you have the majority
of the people in the back who have a union, and you’re
ready to sit and bargain. I don’t know anything about
it. I’d like to have some time. I’ll talk to the people in
the back or somebody ought [sic] will tell me, and I’ll
get back with you gentlemen.
In cross-examination, John Kaounas admitted that he want-
ed the specific names of the card signers and that he had im-
mediately decided to ascertain the identity of union cards
signers. He testified that the first step he took was to ques-
tion Norwood, who then reported rumors of union activities
of unnamed employees. Kaounas explained that he decided
to hold a meeting with all the production employees then
working after lunch in the production area of the plant.
On the same day, Clark filed the Union’s petition for cer-
tification of representative for the unit employees in Case
17–RC–18792.
B. September 26 Employee Meeting
Present at the plant meeting were all the production em-
ployees, Norwood and the brothers Kaounas. John Kaounas
admittedly summoned the employees, alluded to Clark’s
claims and questioned the group as to their support of the
Union. However, significant details of the discussion are in
dispute as set forth in General Counsel witnesses’ testimony
of Cross, Wells, Gargarilla, and Stoneburgh and that of Re-
spondent witnesses John and Gus Kaounas, the last of which
was in the form of categorical denials elicited by leading
questions and given without context of the witnesses’ own
recollection of what was said. Therefore, Gus Kaounas’ testi-
mony on this point was the least meaningful and of little pro-
bative value, much less of corroborative value. In cross-ex-
amination, he recalled only a fragment of the discussion.
Cross testified that John Kaounas acknowledges that a
‘‘handful’’ of employees were seeking union representation
which would occur ‘‘no way’’ and that it would result in ex-
cessive costs and would not be beneficial. After some hesi-
tation, Cross hesitantly testified further that John Kaounas
also stated: ‘‘I might even have to shut the doors.’’ He testi-
fied that Gus Kaounas then stated the same thing. When
questioned by the court as to who actually referred to plant
closure, he testified that it was Gus Kaounas who made such
reference, not John Kaounas. Wells testified to similar intro-
ductory remarks by John Kaounas except that he made no
reference to a claim of excessive costs, nor to lack of benefit
in union representation nor to plant closure. Wells, however,
testified that John Kaounas stated that there was ‘‘no way the
union was going to come in, that ‘they’d’ have drugs and al-
cohol tests, and that most of us would be fired because of
those tests.’’
In cross-examination, Wells and Stoneburgh corroborated
John Kaounas’ testimony that he had explained to the em-
ployees that union agents had visited him and had claimed
employee designation as bargaining representative. Wells did
not recall but Stoneburgh did testify, as John Kaounas testi-
fied thereafter, that Kaounas stated that he wanted to ascer-
tain the truth of that claim directly from the assembled em-
ployees by open public declaration to Kaounas and that he
waited on them for a response that was not forthcoming. In
his cross-examination, Cross denied that Kaounas had re-
ferred to the union agent’s recognition demand or majority
claim or that Kaounas asked the employees to declare their
union representation desires. Cross did, however, now recall
in cross-examination that Kaounas also stated that three spe-
cific competitors had gone bankrupt after having recognized
a union because they had lost the ability ‘‘to compete in the
market place.’’
On direct examination, except when the meeting turned to
the subject of timeclock rules, to be discussed hereafter,
Gargarilla had no recollection of what was stated at the
meeting which he, unlike all others, placed as occurring after
the end of the work shift. On cross-examination, Gargarilla
did recall that there was indeed some reference to drug test-
ing, but that it was in fact made by a newly hired employee
who volunteered his opinions on union representation based
on prior employment. On this point he was certain in his his
demeanor. He also recalled John Kaounas made some un-
specified reference to two competitors who had gone bank-
rupt after union recognition.
Stoneburgh’s direct examination revealed the poorest, most
confused and thus most unreliable recollection of what
turned out to be the first of three successive September em-
ployee meetings with the Kaounas brothers. As will be dis-
cussed below, two more employee meetings were held by
Kaounas on September 28. Stoneburgh testified that 1 or 2
‘‘weeks’’ prior to that date. John and Gus Kaounas had
‘‘harassed us all the time’’ about the Union and both had
stated in an undisclosed context that the Union was ‘‘no
good’’ for the employees, that it would ‘‘bring [the employ-
ees] down,’’ that there ‘‘would be no periodic raises,’’ that
there was also said, ‘‘something to do with benefits,’’ and
that ‘‘there was no benefits until they found out what the
Union was going to do.’’ It is undisputed that Respondent
did not have a policy of granting raises to non-newly hired
employees according to a set time schedule. Thus there had
been no periodic raise policy, and such a threat could not
have been made.
The most fluent, detailed exposition of what was said at
the September 26 meeting prior to the discussion of time-
clock rules was given by John Kaounas as follows: After he
had explained Clark’s bargaining requests and assertions of
majority status, he asked the assembled I employees to reveal
to him, and in front of all assembled, whether or not they
each desired union representation in a manner clearly indi-
cating he wanted a response. There was no response. John
Kaounas admitted that it was his fixed intention to keep try-
ing to discover the identity of card signers by open public
declarations, however, as his sole means of verification of
Clark’s claim. Third party verification or secret balloting or
other private polling was not considered.
John Kaounas then told the assembled employees, as they
contemplated his interrogation, that two named competitors
had experienced business failures ‘‘because of the Union’’
after having recognized a union as employee bargaining
agent. (Kaounas testified that he made this statement at both
of two subsequent meetings held within the next 2 days.
Then he testified that it was also said at the first of three
such meetings with employees.) Although John Kaounas tes-
tified that he based his information on newspaper accounts
588 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and conversations with representatives of the failed competi-
tors, he gave no further factual exposition to the assembled
employees beyond the repeated stark statement of that chro-
nology, i.e., recognition—bargaining—consequent business
failure because of the Union. Kaounas himself did not refer
to ‘‘market place competition.’’ Also, he told the employees
that if they were represented by the Union, they will pay
union dues. When asked whether he spoke of any other con-
sequences, he testified:
I said it quite a few times. I said, guys, I want you to
understand whoever is involved, I’m not really trying to
find out why you want a union or why you don’t want
a union, I’m only trying to find out if it’s true that
these people walked in my office [said to me]. If some-
body admits it, there will be no harm done. You have
the right to put a union in. And if you wish to put a
union in, go ahead and put a union in. But it will be
nobody loses his job, nobody gets mad.
Despite this testimony regarding assurances, which was not
explicitly contradicted in rebuttal examination of General
Counsel’s witnesses, it was preceded by the allusion to busi-
ness failure and, admittedly, immediately followed by
Kaounas’ statement to the group that if they do choose union
representation, Respondent will ‘‘have to really be strict with
the rules.’’ He stated that neither the individual employees
nor Respondent will be entitled to make unfettered decisions
but will be compelled to obtain agreement of the third party
union, that ‘‘we have to obey the rules more’’ and to resort
to formal grievance procedures, that ‘‘it ill create hardship
between management and the workers’’ in the form of dis-
traction and burdensome paperwork and ‘‘arguing at each
other,’’ and that formal records will be maintained of em-
ployee work performance and behavior in consequence of a
formal grievance mechanism.
John Kaounas’ cross-examination was marred by argumen-
tative banter with counsel, hostility, evasions, calculations as
to the impact of his answers, a gross lack of spontaneity, at-
tempted retractions, and disingenuous, unconvincing claims
of inability to understand parts of his pretrial affidavit, de-
spite an earlier demonstration that he clearly understood it.
In the midst of the tortuous testimony at one point or an-
other, John Kaounas admitted that prior to September 26,
Respondent had maintained a casual, flexible, informal rela-
tionship where plant rules, if any, were discriminately en-
forced within the context of the occasion, free of written me-
morialization and violations were often overlooked. In con-
tradiction of an earlier denial, Kaounas admitted that he told
the employees that if they obtained union representation,
plant rules would be instituted and enforced inflexibly and
indiscriminately. He admitted that in his pretrial affidavit he
had testified that immediately thereafter, he cited as an ex-
ample of a prior rule that sometimes was observed and some-
times not observed by employees who sometimes were and
sometimes were not disciplined for violation, was that requir-
ing employees to timeclock register their plant exist and re-
turn during the unpaid 12:30 to 1 p.m. lunch period. He fur-
ther admitted having disclosed to the Board agent a past
practice of toleration of ‘‘lots of employees mistakes and
problems.’’
Within the foregoing context and preceding remarks, the
reader’s attention is now directed to the subject of timeclock
rules as it arose in the meeting of September 26. Imme-
diately on advising the employees that, if unionized Re-
spondent would be ‘‘really strict with the rules,’’ John
Kaounas admittedly singled out John Cross. Cross testified
credibly, without contradiction and consistent with John
Kaounas’ own testimonial admissions and with corroboration,
that John Kaounas looked around the room, fixed his eyes
on Cross and said, ‘‘So you want to play by the rules, we’ll
play by the rules.’’ Kaounas then asked whether Cross had
left the plant during lunch and, if so, had he punched the
timeclock. According to John Kaounas, contrary to all em-
ployee testimony, he stated to the employees there was a
prior plant rule against departing the plant at lunchtime. Ac-
cording to the testimony of all employees, Kaounas did not
refer to lunchtime plant departure as misconduct per se, did
not make it an issue, but rather explicated only the failure
to punch the timeclock at lunchtime as a violation of plant
rules. They all testified, with varying degrees of frequency,
to their own past experiences of not only having departed the
plant for lunch but doing so without having punched out or
in and without having been disciplined. It is clear from the
closeness of the area, the numbers involved and John
Kaounas’ own testimonial admission in cross-examination,
that such conduct not only occurred but was well known to
Respondent and tolerated.
John Kaounas’ contrary testimony in his direct examina-
tion as to past enforcement of a no-departure rule is therefore
also discredited. He and Gus Kaounas had testified variously
as to the imperative need to prevent any workday departure.
Yet he had testified that the timeclock rule had nothing to
do with the plant departure rule and that the appropriate dis-
cipline for lunchtime departure without timeclock entry when
the employee is not expected to be working is 1 or more
days of suspension, but that departure during actual sched-
uled worktime which amounted in effect to thievery of com-
pany time warranted only a docking of one-half-hour pay.
Kaounas attempted to explain this patently anomalous dis-
parity of discipline by suggesting that lunch departure re-
sulted in alcohol or drug consumption a distance from the
plant, but worktime departure which made possible similar
behavior occurred generally in the plant parking lot where it
could more easily be observed and controlled. Yet no rule
nor the enforcement of any rule had ever been restricted or
modified by the locus of the departed employee. Kaounas’
labored, unsatisfactory explanation was only offered on the
court’s insistence for some kind of explanation Kaounas’ de-
meanor was as unconvincing as was the cogency of his re-
sponse.
In view of the lack of apparent bias of disinterested former
employee witnesses, I find their mutually corroborated testi-
mony, which is in accord with John Kaounas’ testimonial
and pretrial admissions, to be compelling and convincing
with respect to the issue of the nature of the rule violation
discussed by John Kaounas on June 26, i.e., lunchtime fail-
ure to punch the timeclock. I further find that upon acknowl-
edgment of such conduct, Cross then Kinney and then
Gargarilla were peremptorily and explicitly discharged at that
meeting. At that meeting Kutz also acknowledged the same
alleged misconduct but was pardoned by Kaounas as a new
employee ‘‘unfamiliar’’ with the alleged rules. Kaounas’ tes-
timony that he merely suspended the employees is also dis-
589INTERNATIONAL DOOR
credited in view of his credibility deficiency noted above and
his particularly evasive and unconvincing demeanor regard-
ing the nature of the letters which thereafter issued to all dis-
charged employees which directed them to return to work as
of 8 a.m. Wednesday, September 28. Not only do those let-
ters constitute an unprecedented form of recordation of dis-
cipline of any nature memorialized in the individuals’ files,
they also on their face refer to the alleged rule violated as
‘‘leaving the premises . . . without punching out’’ not for
the departure per se.
When told that he and others were discharged at the Sep-
tember 26 meeting, Cross and Wells challenged John
Kaounas, and protested that the only written relevant rule
posted at the timeclock provided for a penalty of one-half-
hour docking of pay for failure to punch out when leaving
the premises, and they proceeded to lead Kaounas to the
posted rule and to futilely argue the point.
In his testimony, John Kaounas attempted to characterize
the employees’ protest as a twisted misinterpretation of a
preexisting rule well known to them which forbade any plant
departure during the workday under penalty of suspension.
As noted above, such testimony is disingenuous and not
credible insofar as it suggests past enforcement by suspen-
sion with respect to the lunch period within the meaning of
the posted pay docking rule. Gus Kaounas’ testimony on the
preexistence of a rule prohibiting all plant departures during
the workday inclusive of the lunch period is contradictory,
inconsistent and, at the very least, confused. At one point he
testified that, prior to union activity, if an employee decided
to take lunch outside the plant, he was merely obliged to
punch the timeclock. At another point he testified that em-
ployees did not always comply with that obligation. At an-
other point he testified that before September 26, lunchtime
plant departure was subject to his explicit permission but that
Cross had often asked for and received this permission, not-
withstanding his and John Kaounas’ other testimony of the
imperative nature of absolute compliance with the rule
against any departure, i.e., to prevent thievery of plant prop-
erty and the imbibing of alcohol and drugs and socialization
between employees with girlfriends and wives on the plant
parking lots and that Cross was identified in Respondent’s
opinion as a lunchtime drug and alcohol abuser.
C. Individual Conversations September 27
Wells was employed by Respondent from 1986 until Janu-
ary 2, 1989, when he terminated his employment under cir-
cumstances not shown to have induced in him any anti-Re-
spondent bias. Although characterized in Respondent’s brief
as a friend of Cross and thus, as such, presumably willing
to perjure himself support any aspect of the case favorable
to Cross, I found him to be a dispassionate witness, sponta-
neous and cooperative in cross-examination where he con-
ceded several significant factual points favorable to Respond-
ent. I find insufficient testimony on which to conclude the
extent of the kind of bias Respondent suggests. I conclude
that Wells is a credible witness and much more so than ei-
ther John or Gus Kaounas. I conclude that any credibility de-
ficiency of Wells is due to a failure or confusion in powers
of recollection as exhibited by the other unbiased witnesses
no longer employed by Respondent, as revealed by their de-
scription of the September 26 meeting which in fact they
confused with subsequent meetings and conversations.
On September 27, the day when Cross, Gargarilla and
Kinney were still not recalled and when John Kaounas’ re-
marks of the day before were still echoing in the employees’
consciousness, Gus Kaounas came on Rosbury and Wells
who were on the rear end of a trailer while eating lunch out
in the parking lot during lunchtime where they sat together.
Wells’ testimony that a conversation occurred and, as to the
substance of it, was not contradicted by Gus Kaounas except
for ineffectual, unconvincing, monosyllabic denials elicited
by Respondent counsel’s leading questions as to whether ei-
ther Kaounas brother threatened employees. Since Kaounas
did not deny that such a conversation occurred and because
he kept silent as to what actually was said, I credit Wells as
to the details of their conversation. I find that the first re-
markable thing about this conversation, uncommented on in
the briefs, is that neither Wells nor Rosbury was admonished
for being found outside the plant during lunchtime, only 1
day when employees were discharged not merely for time-
clock entry failure but allegedly for the lunchtime departure
itself. This incident further underlines Respondent’s lack of
credibility as to the preexistence and rigorous enforcement of
a lunchtime no-plant departure rule prior to September 26, as
well as the proffered reason for the September 26 discharge.
The second significance of this encounter is that I find that
when he approached the employees, Gus Kaounas, while
making no reference to their presence outside the plant, rath-
er demanded Rosbury explain how he could be friends with
Wells. When he received no response, Kaounas turned to
Wells and asked him why he was trying to hurt his business
and stated that the Union would not gain anything for the
employees but they instead would ‘‘get less if the Union
came in,’’ and that the ‘‘ones that had joined in, that started
the Union wouldn’t be around to be able to enjoy it.’’ With-
out further explanation, the conversation terminated. This
statement clearly implied retribution loss of present level of
benefits on unionization. The context of this case places the
prediction of employment loss for union sympathizers as
having occurred the day after three employees were precipi-
tously discharged pursuant to retaliatory enforcement of a
previously nonenforced rule. Thus the reasonable interpreta-
tion of the prediction is that union card signers will be quick-
ly discharged. This conduct by Gus Kaounas was not alleged
in the complaint, but it does evidence Respondent’s union
animus.
D. September 28 Meetings
By letter dated and mailed on September 26, 1988, ad-
dressed to Respondent and signed by Clark, the Union de-
manded recognition and bargaining for unit employees. The
letter was received by John Kaounas the next day, September
27, which is the day that the discharges were, in effect, re-
scinded and the dischargees reinstated as of Wednesday 28.
On September 28, Kaounas, by letter of same date, rejected
the recognition request.
Of least probative value concerning the events of Sep-
tember 28 is the testimony of Gus Kaounas which eventually
consists of a series of cryptic denials elicited by leading
questions concerning certain statements alleged to have been
made by his brother or himself. Moreover, he revealed that
his recollection was so poor that in cross-examination he
could not even recall that there were two meetings on that
date, despite his affirmative response to Respondent’s coun-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sel in direct examination as to whether he was present at all
three meetings. In cross-examination, his recollection of what
was said was fragmentary and very limited. Further indic-
ative of his poor credibility was his testimony that the orga-
nizational attempt did not ‘‘bother’’ him and that he did not
speak publicly on the subject at these meetings, whereas
John Kaounas testified that his brother Gus, possibly during
the meeting if not afterward, accused the employees of
‘‘going behind his back’’ with respect to their union activi-
ties.
The employees’ testimony of the first meeting on Sep-
tember 28 and, to a large extent, the second meeting on that
day is like their recollection of the meeting of September
26—selective and not entirely mutually corroborated.
The only recollection of any events on September 28 in
Gargarilla’s testimony concerns an uncontradicted, context-
free conversation with Norwood at the end of the day where-
in the admitted supervisor told him, on his arrival at the
plant in the morning, that the employees had ‘‘messed up’’
by signing union cards and, upon Gargarilla’s proffered de-
nial of card signing, Norwood said that Kinney and Bazman
‘‘screwed up’’ by signing union cards and that ‘‘the Union
ain’t going to help you.’’ This testimony is insufficient to es-
tablish coercive interrogation as alleged in the complaint.
Stoneburgh testified that he did not attend the first meeting
on September 28. Cross testified that the first meeting on
that day was held in the lunchroom immediately after lunch
by the brothers Kaounas with all employees present, at which
John Kaounas repeated a statement that union representation
would not be beneficial to the company because it would
cost more to operate. He hesitantly and confusingly testified
further that John Kaounas stated:
It would—he would have to even if they had to bring
in other people and pay them a Little more to do the
job, we may be out on the street striking.
With respect to anything else said by either Kaounas brother
during the one-half hour meeting, he testified:
. . . they said that they didn’t know how we could do
this to their company and how they didn’t want any-
body else to run their company than them.
In cross-examination, he could recall no reference by John
Kaounas to the Union’s written recognitional demands, but
he did recall the repeated reference to competitors’ bank-
ruptcy because of lack of ability to compete but not specifi-
cally what was said about it.
Wells also recalled that all the employees met with the
Kaounas brothers at 12:30 p.m. in the plant. Of his own
unprompted recollection, he recalled that John Kaounas initi-
ated the conversation by saying that there was ‘‘no way that
the Union was going to come in’’ and that if it did, the em-
ployees ‘‘would be across the street striking because we’d
have to negotiate with them.’’ When the topic of job bidding
was suggested by counsel, he testified that John Kaounas
stated that he would ‘‘cut back on the work to building 4
or 5 doors a month’’ from the normal 8 to 10 to the point
where there would be work available only for the Kaounas
family, Norwood and a few others.
Kaounas denied having stated in any meeting with em-
ployees that he would not allow a union in the shop, denied
but later admitted a threat to institute more difficult work
rules, denied telling employees that he would intentionally
slow down shop production and denied saying that a strike
was inevitable. John Kaounas admitted that he convened the
first meeting on September 28 because he had received the
Union’s demand letter and that he again asked employees if
the majority claim was true. Kaounas testified that, again
having received no response, he told the employees to think
it over and he would meet again later after the break period,
at which time he told them that they could not leave him
hanging and he had to have their response.
Kaounas further admitted that after the first meeting on
September 28 Bazman came to him and disclosed that he and
most of the other employees had signed union representation
authorization cards and he named specific card signers, in-
cluding Wells, Cross, Kinney, and others. Bazman told
Kaounas that the Union’s claim of majority employee des-
ignation was accurate. Bazman apologized, and Kaounas ex-
pressed his appreciation and admitted in cross-examination
that Bazman, a substitute foreman, had at that point con-
vinced him that most of the employees signed union cards.
Kaounas further admitted in cross-examination that during
that confrontation he insisted that Bazman tell him ‘‘yes or
no’’ whether he, Bazman, had actually signed a card. That
admission undermines Kaounas’ suggestion that the disclo-
sures were voluntary and spontaneous.
John Kaounas admitted in cross-examination that on Sep-
tember 28, he repeated at both meetings on that day his
statement that two unionizations caused the business failures
of his competitors. The constant repetition not only under-
mines Gus Kaounas’ claim of indifference but also under-
mines John Kaounas’ credibility with respect to his
uncorroborated claim that he assured employees that there
would be no resentment against them if they merely con-
firmed the accuracy of the Union’s majority claim. Although
the employee witnesses’ total recollection is handicapped, as
noted above, the thrust of their testimony effectively con-
stitutes a denial that assurances against retribution were made
but, instead, alleges that John Kaounas stated or suggested
the contrary, i.e., retribution for unionization. Despite their
deficiencies in total recollective recall of everything Kaounas
stated and the individual witnesses’ failure of mutual cor-
roboration of segments that each witness recalled, I find
Wells and Cross, and to a lesser extent Stoneburgh more
convincing and credible witnesses than either of the Kaounas
brothers whom, for reasons already stated, are of less com-
pelling veracity. I conclude that each employee witness truth-
fully recalled that part of John Kaounas’ statement which im-
pacted the consciousness of each in a way which had special
significance for each, and thus that segment remained in each
witnesses’ memory retention. I discredit the claims of assur-
ance of nonreprisal and find rather that the contrary was sug-
gested in various forms, i.e., stricter rules, peremptory dis-
charges on September 26, references to business closures,
etc.
Within the foregoing context, the third employee meeting
of only union card signers was summoned in the plant office
on the afternoon of September 28, when, despite Bazman’s
revelation, John Kaounas again confronted this time only the
card signers, including Stoneburgh, and repeated the compet-
itor bankruptcy reference. It is undisputed that during that
meeting the employees were again asked to publicly state
591INTERNATIONAL DOOR
their desire for union representation and were told that each
one of them could avail himself of the telephone in that
room to communicate with Clark their repudiation of their
union card in the presence of the Kaounas brothers and Fore-
man Norwood. For reasons already stated, I find more cred-
ible the employee witnesses and accept their version of the
specific manner of the serial repudiations that occurred,
which was not convincing and effectively contradicted by ei-
ther of the Kaounas brothers. It should be noted that Re-
spondent, for no expressed reason, failed to adduce the testi-
mony of its Supervisor Norwood on any factual issue.
Gus Kaounas exclaimed shock that the employees would
do this (seek union representation) when they were all like
‘‘family.’’ When told by John Kaounas that Clark was avail-
able for their telephone calls to ‘‘settle this union business’’
and that they should immediately start making the calls of
repudiation, Wells asked for but was refused time to think
it over privately. Norwood asked who the union ‘‘ring-
leader’’ was, and Wells said that it was group effort. John
Kaounas then dialed the telephone and handed it to Bazman
who was the first to repudiate and tear up his union card au-
thorization. Each employee was then in turn directed by John
Kaounas to the telephone and each proceeded to repudiate
and tear up his union card as he watched. Clark told Wells
during their telephone conversation that Respondent was act-
ing improperly in arranging their mass repudiation, but Wells
conformed with the repudiation for fear of being discharged.
Wells conceded in cross-examination that John Kaounas did
not explicitly threaten discharge for refusal to make the tele-
phonic repudiation, but he assumed as much from the way
in which Kaounas told the employees that they could either
make that telephone call then or ‘‘walk out the door.’’ Cross
also testified that Kaounas had made the remark.
On September 28, John Kaounas forwarded to Clark a
cryptic refusal of recognition of the Union as unit bargaining
agent.
E. Postmeeting Individual Confrontations
Cross testified that he remained in the room after he and
the other card signers all had repudiated their cards and de-
parted, and that the following events occurred. Cross initiated
a confrontation with the Kaounas brothers and Norwood by
telling them that working conditions had to change because
employees were treated unfairly. He testified that ‘‘there was
something said about profit sharing.’’ Cross’ recollection was
fragmented and confused, but according to him, one of these
persons in some unspecified manner suggest how the pre-
existing profit-sharing plan ‘‘worked or something’’ and that
‘‘we could get more later.’’ Cross had been a member of the
profit-sharing plan for several years. John Kaounas denied
having told any individual employee that he could give them
more than the Union and denied having had any individual
conversations with employees about the Union. John
Kaounas admitted that Wells and Cross stayed behind after
the third meeting. Wells was silent on this incident. John
Kaounas confirmed that he was confronted with a protest that
working conditions were not ‘‘being run right,’’ and a spe-
cific complaint made about Norwood’s alleged verbal abuse
of employees. According to Kaounas, he explained that Nor-
wood was responsible for employee production but Kaounas
promised to investigate to determine whether or not Nor-
wood ‘‘was too hard on [the employees] or something’’ and,
if so, why. That ended the conversation. Thereafter, John
Kaounas questioned Norwood who, according to Kaounas,
replied that Cross had made repeated errors despite his in-
structions which necessitated repeated instructions.
Stoneburgh testified that immediately after the third meet-
ing, he ‘‘went in’’ and spoke with Gus Kaounas privately
and told him that he wanted union representation because he
wanted medical insurance, ‘‘not only for me,’’ and that he
was expecting a newborn child and he needed a pay raise.
According to Stoneburgh, Gus Kaounas replied that the em-
ployees ‘‘got it too good already,’’ but was otherwise silent.
Stoneburgh testified that he received a $1 pay raise 3 or 4
weeks later, the first he had ever received, but did not obtain
any subsequent medical insurance coverage. In cross-exam-
ination, he admitted that, on his hire, he was told that he
would become eligible for medical insurance on 1 year’s em-
ployment. He voluntarily terminated his employment. He
vaguely guessed that he had worked about 6 months. In
cross-examination, he testified that he had not witnessed any
management statements about the profit-sharing plan but reit-
erated his testimony that the employees were told, apparently
at one of the meetings, that ‘‘they’’ told us that we ‘‘were
up for a raise until the Union, and they told us they are not
going to do nothing for us until this whole deal with the
Union was over with.’’ He conceded that the Kaounas broth-
ers stated that ‘‘they could not change the terms and condi-
tions of . . . employment while the NLRB proceedings were
going on.’’ Stoneburgh explained his understanding of Re-
spondent’s pay raise policy to be one of discretionary merit,
and that new employees do not automatically receive a pay
raise after a certain period of time.
Although the complaint alleges otherwise, Stoneburgh tes-
tified that, despite his frequent past requests, his metal shear-
ing job remained the same and he did not receive less ardu-
ous work duties except when there was no shearing to be
done. Gus Kaounas, however, testified that Stoneburgh re-
ceived a pay raise after he had been ‘‘moved up’’ to the
shearing position and had done a ‘‘super job.’’ It is not en-
tirely clear from Stoneburgh’s testimony whether he had
started his employment as a shearer or had been ‘‘moved
up’’ somewhat later. Stoneburgh’s employment records re-
veal a hiring date of June 8, 1988, and $1 pay raise for the
weekly pay period ending October 29, 1988. Payroll records
for the last quarter of 1988 reveal several employees who re-
ceived similar $1-per-hour raises at about the same length of
service. Gus Kaounas testified, without effective contradic-
tion, that newly hired unskilled, and inexperience employees
are first assigned to such tasks as sweeping the floor, paint-
ing, and etc., and, on being taught to operate machines, read
blueprints, etc., are moved up to more demanding work and
given a raise.
F. October—The Carrot
The General Counsel alleges that in October 1988, Re-
spondent continued its antiunion efforts with the commence-
ment of a ‘‘carrot and stick’’ strategy, commencing with car-
rots. In addition to the above-discussed Stoneburgh incident,
the General Counsel asserts that in mid-October, Cross,
Wells, and Gargarilla were unexpectedly granted medical in-
surance, while Respondent was concurrently soliciting em-
ployees to ‘‘drop the whole matter of the Union.’’
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The petition for representation filing was followed by the
Union’s filing of the first unfair labor practice charge on
September 27 with respect to the discharges of that date. The
U.S. Postal Service delivery receipt indicates service effected
on September 29. On September 29, the second charge was
filed by the Union with respect to the September 28 group
meeting and service executed on October 3. The first com-
plaint issued on November 1, 1988, and presumably, the rep-
resentation case has been suspended pending disposition of
these charges. The General Counsel’s assertion of explicit
continued antiunion solicitation is premised on the testimony
of Wells. According to his generalized testimony, the
Kaounas brothers ‘‘would walk around and ask employees to
drop the whole matter about the Union’’ a ‘‘couple of
times’’ in October, to which solicitation Wells merely
shrugged. The incidents come with the Kaounases’ categor-
ical denials. Although I find Wells to be the less biased and
generally more reliable because of the vagueness of his testi-
mony, it is impossible to form any findings as to just what
was stated and to what degree the statements tended to be
coercive.
Cross testified that he did not participate in Respondent’s
medical insurance plan. He did not explain whether it had or
had not previously been offered to him nor why he did not
participate. He testified, without any foundation or context,
that at some indeterminate date during the ‘‘Union drive,’’
Respondent was in the process of ‘‘changing carriers’’ and
‘‘policies’’ and he was given ‘‘forms’’ to fill out but that be-
fore he did so, someone, presumably a Kaounas brother, told
him it was canceled. When asked ‘‘why was that’’ by coun-
sel, he testified ‘‘because of the Union drive.’’ It was not
clear whether an agent of Respondent told him that or wheth-
er it was merely his unfounded conclusion. Cross admitted
that on hiring, Norwood told him and other employees that
at the end of a successful year of employment they would
be given the option of choosing a pay raise or medical insur-
ance coverage and that, in fact, he was proffered that option.
Cross testified that in mid-October 1988, Gus Kaounas
presented him with a medical insurance application and in-
structed him how to fill out the forms. Cross did so that
night and returned the forms. Cross testified without context
that in mid-November 1988, John Kaounas had engaged him
in a conversation wherein he stated that he ‘‘cannot do any-
thing for us’’ because his ‘‘hands were tied . . . because the
Union might think it was a bribe.’’ Cross denied that he had
been aware of the preexistence of a Respondent-sponsored
medical insurance policy and denied that he had even been
offered the option described by Wells. However, he admitted
having been aware that Bazman had been offered such op-
tions. He admitted having received a raise at his first year
employment anniversary.
Gargarilla testified that in early October, he had heard that
all other employees were being given medical insurance cov-
erage and therefore he asked someone in management that he
needed and wanted such coverage and was told he would re-
ceive it. He voluntarily quit on October 10 prior to its effec-
tuation.
John Kaounas testified, as Cross had admitted, to the pre-
existence of a medical insurance coverage option in lieu of
pay raise on first anniversary of employment. He testified
that Cross, Wells, and Gargarilla all asked such coverage in
October 1988, and he responded that he did not understand
why they did not have it already. According to him, the em-
ployees said that they did not know either. He told them he
would ‘‘go and check.’’ Subsequently Gus Kaounas gave
them forms. He testified that he decided not to process
Cross’ and Wells’ applications because they were not entitled
to a raise at that time whereas Gargarilla was and was eligi-
ble, i.e., the option arose, according to Respondent testi-
mony, at the first anniversary and at any subsequent date
when employees were entitled to a pay raise.
Respondent’s pay raise policy will be analyzed below with
respect to other alleged discriminatory conduct.
The complaint alleges, but the General Counsel fails to
argue in the brief, that on or about October 11 , 1988, Re-
spondent ‘‘increased the benefits of employees Rick Fiddie,
Chuck Wells, and Ron Kinney by admitting them into Re-
spondent’s profit-sharing plan.’’ Kinney and Fiddie did not
testify. Wells testified, in cross-examination, that the first
time he became aware of his participation in a Respondent
profit-sharing plan was when he received two participation
certificates sometime in mid-November 1988, one of which
was dated for a period from May 1 through December 1987
and reflected an accrual in excess of $1300.
Cross had testified, obscurely and without corroboration,
of some sort of reference to profit sharing and the possibility
of receiving more of something later on by John Kaounas at
the third employee meeting. However, on cross-examination,
he admitted the preexistence of a profit-sharing plan and his
participation in it since May 1985, that he had received sev-
eral statements of accrued shared profits and that nothing
about that plan has changed since September 26, 1988. This
testimony thus undercuts any premise for the unargued com-
plaint allegation.
G. October-November—The Stick
The General Counsel argues that Respondent continued
through October and November with its efforts to discourage
employees’ support of the Union, particularly in the areas of
wages and job security. The manifestation of the ‘‘stick’’ is
argued to have emerged in alleged threats concerning wage
raises. The General Counsel asserts that Respondent usually
gave employees raises every 6 months. The evidence cited
in support of this contention is the direct examination testi-
mony of Wells. According to Wells, during his entire tenure
from 1986, he had received ‘‘regular’’ raises. With hesitation
and apparent uncertainty, he testified that he received these
raises, ‘‘maybe every six months,’’ but that employees in
general received raises at no particular time of year. In cross-
examination when asked whether there had been a pre-
existing set schedule for raises, he answered: ‘‘No, not to my
knowledge. It was just, you know, he’d give us a raise.’’ He
admitted that new employees ‘‘might’’ receive raises after 30
days, conditioned on work ability merit.
No other evidence was adduced by the General Counsel as
to past practice of raise regularity. In cross-examination
when asked about what ‘‘impression’’ he had of any pre-
existing pay raise policy, Stoneburgh replied that if an em-
ployee deserved one, he would get it, i.e., an individual merit
system. Thus there is no effective, convincing credible evi-
dence to contradict the testimony of Gus and John Kaounas
to the effect that the only raises for nonprobationary employ-
ees were given pursuant to an ad hoc irregular scrutiny of
the individual merit of an employee within the context of his
593INTERNATIONAL DOOR
individual learning progress and the general state of the cost
of living or when a promotion or change of work assignment
warrants it, or when an evaluation is precipitated by em-
ployee request for a raise.
Given the foregoing context, we must now evaluate the al-
leged coercive Kaounas statements regarding pay raises. As
noted above, Stoneburgh, alone in his testimony, referred to
a raise withholding threat that predated the September 28
meeting. He placed this reference as having been made by
both Kaounas brothers 1 or 2 weeks prior to that meeting
when both of them stated that the Union was ‘‘no good’’ and
there would be no periodic raises. Such confrontation could
not have occurred prior to any overt union activity. Although
Stoneburgh did not set forth the context of threat in his ob-
scure testimony, I conclude that he implied it to have oc-
curred at the first meeting. Stoneburgh’s testimonial accuracy
as to alleged threats, however, is extremely unreliable. He
confused all three meetings, attributed to Gus Kaounas the
role of spokesman which others attributed to John Kaounas.
He fixed the date of the threat at an improbable time. He
placed the September 26 meeting as having occurred during
lunch, contradicting not only fellow witnesses but also im-
possible in light of the motivation for discharges. He esti-
mated the first meeting to have lasted an improbable 3 to 4
hours, contrary to all other witnesses. He placed the first and
second meetings as a ‘‘couple’’ of weeks apart, he claimed
that he asserted to Gus Kaounas that he desired union rep-
resentation because of a need for medical insurance when
other credible evidence reveals the preexistence of such cov-
erage and, finally, his description of a threat to withhold
periodic raises is improbable in light of the nonexistence of
a periodic raise practice. Although an apparently disinterested
witness, Stoneburgh’s testimonial recollection regarding fore-
going Kaounas’ confrontations is unreliable, and I must cred-
it the Respondent’s denials.
Wells testified that on some unspecified date in October,
both Gus and John Kaounas, ‘‘when they were walking
round,’’ told him in a private conversation Respondent
‘‘would not be giving any pay raises’’ because of the advice
of their lawyer ‘‘because they had a Union drive going on.’’
Wells added that at one of those incidents, Gus Kaounas stat-
ed that the new employees would continue to receive the
customary raises after their initial 30-day period of employ-
ment but that ‘‘we wouldn’t because of the Union drive.’’
In cross-examination, Wells added that Gus Kaounas said
that those ‘‘who had signed cards’’ would not receive raises,
and that John Kaounas told him that he had ‘‘list of people
and raises they were going to give, but he couldn’t do it be-
cause of the Union drive that was going on.’’
After Cross had testified as to his October request for
medical insurance coverage, he was asked if he had any fur-
ther conversations ‘‘about health insurance.’’ He answered
affirmatively and testified as follows:
Q. And how did you come to speak with Mr. John
Kaounas on that occasion [mid-November]?
A. He—I don’t know how it came about. It was in
the morning, and we just had started talking, and he
said: well, he cannot do anything for us because his
hands were tied.
Q. Now, was that the first thing that was said in the
conversation or where there other things that were said
before that do you recall?
A. I don’t recall. He said the Union might think it’s
a bribe.
When asked about further conversations about the Union
with John Kaounas, Cross referred to a mid-November inci-
dent wherein John Kaounas alone approached Cross, alone,
presumably in the plant, and told Cross that he could do
‘‘nothing’’ for him ‘‘now because of the union’’ and could
not give him more money. According to Cross, at that point
Kaounas turned and commenced walking toward Wells who
was at a point 25–30 feet away, stopped, turned and mo-
tioned to him to join him at Wells’ work station. Cross testi-
fied that John Kaounas told both of them that ‘‘he could do
better for them,’’ and that they ‘‘could get more money
now,’’ at which point Gus Kaounas joined them. John
Kaounas purportedly then stated: ‘‘I don’t care if the Union
is there or not, you two will not be working under the
Union.’’ Then Gus Kaounas allegedly stated that they (i.e.,
the two employees) would not be working here with or with-
out the Union, because Respondent can ‘‘get [the two em-
ployees out of here anytime we want because of production
times.’’ No explanation was offered or asked for.
The foregoing sequence of alleged incidents, if true, rep-
resents a remarkable rapid sequence of proffered ‘‘carrots
and sticks.’’
In cross-examination, Wells recalled a conversation be-
tween John and Gus Kaounas and Cross at Wells’ work sta-
tion. According to his recollection, he and Cross were asked,
‘‘Why we doing this, starting a union,’’ and they responded
that employees were being treated unfairly. According to
Wells, both brothers stated that he and Cross would not be
working there much longer. He fixed the event as having oc-
curred in mid-December and referenced it to a specific event,
the distribution of new employee handbook. Both Kaounas
brothers categorically denied that conversation.
John Kaounas testified that during this period of time
Cross uncharacteristically frequently sought him out when-
ever Kaounas entered the shop and asked to discuss a pay
raise. Kaounas testified that he responded that he could not
speak to Cross because he had ‘‘things coming from the
Labor Board,’’ that he did not ‘‘know what [to] do’’ but that
when he finished with his ‘‘problem,’’ i.e., the NLRB mat-
ters, he would speak to Cross. According to Kaounas, he told
Cross many times that he would talk to Cross about any
other major problem but not about a raise or Cross’ ‘‘case
with the Union.’’ Kaounas added further that there were
other occasions when Cross came to him in his office and
initiated conversations wherein Cross asked for and at-
tempted to discuss a wage increase for all employees which
Kaounas refused. Kaounas testified as follows:
I said, John, first of all we can’t talk. First of all,
you’re not in a position to talk because you had too
much to drink. Second, if there is a raise to be given,
when there is time to give a raise, you guys will get
a raise. He keeps asking me about what you going to
do with the new guys, you going to give them a raise.
I said, when it’s time to give them a raise through the
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
normal time that I putting [sic] into this Company, they
will get a raise.
Because of the lack of context in his testimony and because
Cross did not explicitly rebut Kaounas on this point, I find
that Cross did initiate numerous conversations wherein he
asked Kaounas about whether his individual or other employ-
ees’ pay raises were imminent. Admittedly, however, con-
versations about raises did take place.
When referred to Wells’ testimony regarding alleged com-
ments to drop the union matter, John Kaounas categorically
denied the statement and testified:
No, I didn’t tell Chuck Wells to forget the Union.
They’re the ones that came to in [sic] and told me they
wanted to—[that] they made a mistake they’re the ones
that came in and called the Union, not me.
Elsewhere, John Kaounas had denied having had any
individual conversations concerning the Union.
In cross-examination, John Kaounas admitted that it was
Bazman and only Bazman, not Wells or anyone else, who,
on September 28, came to him privately and confessed that
he had made a mistake and signed a union card, Kaounas
grudgingly admitted, in persistent but not abusive cross-ex-
amination, that it was he who initiated all three group meet-
ings and that it was he who telephoned Union Agent Clark
and he who had the employees in his presence speak to
Clark. Kaounas further admitted that he demanded of
Bazman to say ‘‘yes or no’’ whether he signed a union card.
Thus John Kaounas destroyed his own credibility with re-
spect to these individual conversations with Cross and Wells
and, furthermore, demonstrated his proclivity to contrive ad
hoc denials and to tailor his testimony for specific incidents.
It was at these points that, in self-realization of his contradic-
tions, he vented his anger at counsel as if to somehow ex-
cuse a self-evident contradiction. Given John Kaounas’ pro-
pensity to calculate and contrive answers, his self-contradic-
tions, and his lack of spontaneity as noted above, I must
credit Cross and Wells as to the foregoing testimony regard-
ing individual confrontations with Kaounas despite the vari-
ations of their individual recollections. Gus Kaounas’ lack of
credibility was discussed earlier and will be discussed below.
For the same reasons, he cannot be found here to have effec-
tively corroborated John Kaounas. I find Respondent’s asser-
tion in the brief that Cross, on one or more of these occa-
sions, was intoxicated is not supported by credible, probative
evidence.
H. Withholding Pay Raises
The complaint alleges that in November 1988 and January
1989, John Kaounas discriminatorily withheld wage increases
from its employees. The General Counsel argues in the brief
that pursuant to its earlier threat, Respondent treated new
employees differently from the union card signers with re-
spect to wage increases in that, of 11 employees granted
wage increases in October and November, 8 were hired after
September 26, 1988, whereas only 3 of the 9 card signers
received wage increases. Cross and Wells testified without
foundation that in their own opinion they ought to have been,
but were not granted increases after September 26. Wells ter-
minated his employment on January 2, 1989. During his con-
versations with the Kaounas brothers, he was not told that
he was on the list of employees due a pay raise, and there
is no objective evidence to conclude that he would have been
due a pay raise in the 3 months before he quit his job. Be-
cause of his length of service, Cross was already fixed at a
rate substantially above other employees. There is
uncontradicted evidence that he was given a $1-per-hour pay
raise in August 1988. He last worked on January 3, 1989.
There is no evidence to suggest that a period of less than 5
months is an unusual length of time during which no merit
pay raise is given, particularly in view of the circumstances
of the August pay raise, to be discussed below, and the
length of time that preceded it.
Stoneburgh, Rosbury, and Kutz, all card signers, received
wage increases in October and November 1988 under cir-
cumstances which warranted such raises, according to the un-
challenged testimony of Gus Kaounas, i.e., job duty progres-
sion. Of the remaining card signers, Respondent’s records re-
veal that Bazman and Kinney remained employed until at
least the pay period ending December 24, 1988. Fiddie was
employed until December 10, 1988, and Privett only until
October 8, 1988. There is no objective evidence, statistical
or otherwise, on which to infer that they were overdue a pay
raise during the period after September 26 ending January
1989. The uncontroverted record evidence reveals that the
new employees were granted wage increases pursuant to past
practice. Although Bazman, as the substitute foreman, was
paid the highest of unit employees, he did not receive a pay
raise during the critical period, even though he was the first
card signer to succumb to John Kaounas’ interrogations of
September 26 and 28. Furthermore, even Jimmy and Nick
Kaounas did not receive increases.
The objective evidence as to withholding of raises neither
supports the complaint allegation nor the variation advanced
by counsel in the brief regardless of whether or not the
Kaounas brothers threatened to withhold raises. However,
Gus Kaounas admitted that in the past, on an employee re-
quest for a raise, he took the request under consideration and
consulted with John Kaounas and made a determination as
to raise warrantability. With the Union’s advent, however,
John Kaounas clearly deviated from past practice and refused
such evaluations.
I. December Work Rules
The complaint alleges that in or about November, John
Kaounas unlawfully implemented new employee work rules.
The General Counsel in the brief argues that in mid-Decem-
ber, Respondent fulfilled its prior threats and imposed new
work rules by the distribution of a previously unpublicized
employee work rule handbook at a meeting with employees
in November or early December.
Cross testified that in November or early December 1988,
John Kaounas summoned to the plant office certain employ-
ees including Kutz, Fiddie, Kinney, Wells, and Cross, where
Gus Kaounas was also present. There, he testified John
Kaounas distributed an employee work rule handbook and
stated, ‘‘This is the rule book,’’ which employees were in-
structed to read and sign an acknowledgment receipt. Cross
testified that he had never before seen such a document. In
cross-examination at first reading of the booklet, Cross could
not identify any single rule as not having had prior existence
in verbal if not written form. On second reading, he asserted
595INTERNATIONAL DOOR
that the booklet did contain new rules not hitherto existing
in any other form. Thereafter, he identified certain prohibi-
tions regarding employee conduct which he subsequently ad-
mitted were governed by implicit commonsense rules, i.e.,
fighting, destruction of Respondent property, possession and
consumption of alcohol and narcotics on the job. However,
he explained that in the past Respondent’s attitude toward
such misconduct had been fairly liberal toward known but
unpunished breaches of these commonsense rules. He cited
as examples fighting, lunchtime timeclock entry, beer con-
sumption and the smoking of a ‘‘joint’’ at lunchtime and on
the job, as observed by Foreman Norwood. He also asserted
that in the past the employees had greater freedom to chal-
lenge the instructions of the foreman by direct appeal to the
Kaounas brothers, now proscribed by the rule book.
Wells was the only other employee witness to testify with
respect to the handbook which he recalled as having been
distributed in mid-November at an employee meeting. Wells
recalled that when he distributed the handbook, John
Kaounas told the employees that since they wanted a union,
they would have to follow the rules. Cross did not recall the
statement but it is in accord with what Kaounas stated or
clearly implied on September 26. I therefore credit Wells.
Wells testified that the only rule that had not existed pre-
viously in some form or other was the attendance rule. He
was not asked nor did he testify as to the past rule enforce-
ment. However, as found above with respect to the Sep-
tember 26 meeting, Respondent, regardless of the existence
of rules in whatever form, applied such rules with a high de-
gree of permissiveness and discretion. I find inconsistent and
not credible John Kaounas’ testimony in regard to past en-
forcement of the handbook rules that he did not ‘‘think’’ that
past enforcement had differed. Thus, assuming the truth of
John Kaounas’ testimony of the preexistence of an employee
handbook at prior Respondent plant locations and its re-post-
ing at the current plant, it is undisputed that the handbook
had been distributed to the employees for the first time, as
testified by Cross and Wells, and in the context of a new
policy of stricter rule enforcement as discussed with respect
to the September 26 discharge.
With respect to alcohol and drug consumption by employ-
ees, it is clear from the Kaounases’ testimony that such con-
duct had existed in the past, certainly in the parking lot dur-
ing lunchtime. Norwood was not called to contradict Cross
as to open, unpunished alcohol and drug use during
worktime the plant. In cross-examination, John Kaounas tes-
tified that in the afternoon employee meeting on September
28, an employee volunteered his past experience at a union
shop where drug testing had been initiated pursuant to collec-
tive bargaining. Norwood looked around pointedly at several
of the employees and shouted out: ‘‘If drug testing [takes]
place in here, my gosh, I won’t have nobody to work. Did
you hear that Guys?’’
John Kaounas admitted awareness of drug use of employ-
ees but with respect to in-plant use, with some uncertainty
and hesitation, he testified, i.e., ‘‘I don’t believe so.’’ He
stated more positively that alcohol was never consumed in
the plant or during working hours. Gus Kaounas testified
similarly and insisted that no alcohol consumption was toler-
ated in the plant during worktime. He was contradicted by
the rebuttal testimony of the former employee and disin-
terested witness Stoneburgh, whom I credit. Stoneburgh viv-
idly described specific management or supervisory observed
incidents, including an occasion when Gus Kaounas gave
him $100 in cash on a Saturday workday at 9 a.m. to go out
and purchase beer for the employees, of whom almost all
consumed throughout the workday, including Norwood who
usually was the person who purchased and brought in the
beer.
In light of my findings regarding the September 26 meet-
ing and my conclusion of the lack of credibility John and
Gus Kaounas, I credit Cross’ testimony, uncontradicted by
Norwood, that past commonsense rules, including those relat-
ing to worktime and workplace drug and alcohol use, were
violated with impunity and with Respondent awareness.
As to the precipitating cause of the rule book distribution,
John Kaounas testified that at and after the September 26
meeting, some employees, particularly Cross, had challenged
him as to the existence of formal rule of conduct. He testi-
fied that ‘‘Mr. Cross actually was the one that was pressing
the issue more.’’ Thus, admittedly primarily in reaction to
Cross’ activity on behalf of the employees, Kaounas, for the
first time in Respondent’s existence, distributed the rule book
to the employees concurrently with the implementation of a
stricter enforcement policy.
J. December Plant Confinement Rule
John Kaounas’ discredited testimony with respect to a pre-
existing lunchtime plant confinement rule was discussed
above. It should be further noted that the handbook, which
supposedly consisted of a repository of prior rules, contained
no explicit prohibition against lunchtime plant departure. At
one point, Kaounas testified that the lunchtime plant confine-
ment rule was verbal and not written. At another point, he
testified that it was contained in the rule book under the
topic ‘‘lunch periods.’’ That language, however, merely pro-
hibits departure from the work station prior to the lunch pe-
riod. The only posted rule, apart from the handbook, was the
1987 rule of timeclock posting which read:
All Employees Are Required To Punch Their Time
Cards Each Time They Each And Leave The Building
Failure To Do So Will Cause An Automatic Deduction
of 1/2 Hour For Each Day
On or shortly after December 7, 1988, John Kaounas posted,
as a supplement, the following rule:
Effective Emmediately [sic]
Employees Are Not Allowed To Leave The Building
For Lunch. If An Emergency Arises The Employee
Must Get A Written Note From The Supervisor In
Order to Leave
John Kaounas’ lack of credibility as to the preexistence of
a lunchtime plant confinement rule has already been deter-
mined. It should be further noted that the December 1988
notice itself implies that the rule was effective on posting,
i.e., it was new. For reasons already discussed, I discredit
John Kaounas’ testimony that he posted the December 7,
1988 rule as a preexisting rule which the employees had be-
come ‘‘confused about’’ on September 26. I discredit his tes-
timony that the December 1988 rule was nothing more than
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
reiteration of the employee handbook, verbal rules and the
1987 timeclock rule. I discredit his testimony that the 1987
one-half-hour docking rule was intended to and was pre-
viously understood by employees to apply to plant departure.
I discredit his testimony that the 1987 rule in conjunction
with other rule was almost ‘‘100%’’ effective in discour-
aging working hour and lunchtime departures and that his
first awareness of any noncompliance with respect to lunch-
time plant departure came about at the September 26 meet-
ing. I find that the rule was motivated by the same purpose
behind the September 26 discharges and constituted a mani-
festation of John Kaounas’ decision to implement a stricter
enforcement of existing work rules and to implement a more
rigidly disciplined work environment for employees who se-
lected the Union as bargaining agent by virtue of authoriza-
tion card execution and who, despite an induced repudiation,
were still the subject of a pending representation claim and
whose cause was perceived by Kaounas to have continued
adherence by Wells and Cross, as evidenced by the foregoing
confrontation.
K. Christmas Bonuses
The complaint alleges that John Kaounas ‘‘set discrimina-
tory amounts for employee Christmas bonuses.’’ This allega-
tion is not argued by the General Counsel. Although Re-
spondent has had a history of granting employee Christmas
bonuses according to uncontroverted testimony, the amounts
varied per individual employees and were determined not by
seniority but rather by such factors as job function, excep-
tional job performance and attendance. In exceptional cases,
more than the usual $25–$30 was granted. Cross and Wells
each received $25, $50, and $25 for the years 1986, 1987,
and 1988 in that order. Cross complained to John Kaounas
in 1988 that Kinney had received a $400 bonus in 1988,
whereas he and Kinney did the same work. Kinney, however,
was also a card signer and has had a history of large Christ-
mas bonuses as the acknowledged highest producer in the
shop, e.g., $200 in 1987 and $100 in 1986. Similarly,
Fiddie’s superior performance was recognized in 1988 and
1987 with bonuses of $100 each year. Fiddie retired because
of a heart attack prior to Christmas 1988. Bazman received
larger bonuses because of his position as substitute foreman.
It is John Kaounas’ unrefuted testimony that Wells and Cross
received the slightly larger $50 in 1987 because of Wells’
superior performance on the saw and Cross’ extra miscella-
neous duties. Most other employees received $25–$30 for
1988 as in prior years. Thus the evidence is insufficient on
which to find a discriminatory bonus determination at Christ-
mas 1988.
L. Background to the January Discharge
John Cross was hired on November 1, 1984, at $4 per
hour. He became one of the highest paid nonsupervisory unit
employees and, at $8 per hour, received only $1 per hour
less than substitute Foreman Bazman. At Christmas 1987, he
received an augmented bonus in recognition of his perform-
ance of extra work duties. Thus, at the very least, the level
of his work performance and personal behavior as of January
1, 1988, was satisfactory.
In cross-examination, Cross admitted to the consumption
of intoxicants at lunch on unspecified dates and unspecified
frequency but claimed that he never reached a point of de-
bilitation, e.g., he usually drank at most two 12-ounce cans
of beer at lunch whereas his tolerance ran to 8 beers. He de-
nied that Gus Kaounas ‘‘repeatedly’’ asked him to stop
imbibing alcohol during lunch, but he denied only that he
smoked marijuana during worktime. As noted above, beer
drinking was openly condoned. Respondent’s evidence, in-
cluding an implied admission to John Kaounas that Cross
smoked marijuana and imbibed alcohol beverages outside the
plant in the parking lot, is not disputed. Cross admitted that
he was asked twice by Gus Kaounas not to smoke marijuana
in the plant parking lot and at lunch. He fixed that event as
about 1 or 2 years before this proceeding. Respondent did
not date its observations nor contradict Cross’ estimate.
John Kaounas testified that he never had occasion to smell
alcohol on Cross’ breath during working hours but did so on
unspecified dates when Cross returned from lunch. The only
foundation for John Kaounas’ characterization of Cross as
‘‘drunk’’ is that he smelled of alcohol. Such unfounded char-
acterization is not of any probative value. Gus Kaounas, who
was more directly in charge of production, failed to testify
as to any specific instances of actual incapacity of Cross dur-
ing the performance of work duties because of alcohol or
drug abuse either in or outside of the plant. He testified to
no observation of Cross’ alcohol consumption or marijuana
smoking in the plant itself.
John Kaounas’ testimony reveals that when he saw mari-
juana-type cigarettes fall from Cross’ pocket in the plant on
an unspecified date and on Cross’ assurance that he never
smoked marijuana in the plant, Kaounas merely cautioned
him that the employees ‘‘better be careful’’ because of Re-
spondent’s history with drug and alcohol related accidents in
the plant. But his testimony reveals no further admonition.
John Kaounas testified that throughout his experience there
had been numerous accidents caused by the use of drugs and
alcohol during working hours. Only one specific incident in-
volving a severe injury he suffered was referred to, but that
occurred in 1982, long before Cross’ employment. Moreover,
the employee involved suspected of drug abuse was per-
mitted to work without punishment.
On the foregoing evidence, Respondent argues in the brief
that Cross had a drug and alcohol problem which caused him
to leave the plant ‘‘as often as he could’’ at lunchtime to
drink alcoholic beverages and which led to his discharge.
In August 1988, Cross was admittedly discharged by Gus
Kaounas because Cross allegedly repeatedly failed to follow
Kaounas’ specific instructions in the correct manner of con-
necting a 3,000 pound load of steel to a lifting device. He
was fired on the spot after ignoring a final order and insist-
ing that it was correctly fastened. Gus Kaounas assumed that
because Cross refused to accept his instructions, ‘‘something
was wrong’’ with Cross, and he further assumed that the
‘‘something’’ was that Cross either drank alcohol or smoked
marijuana in the morning. No factual foundation was laid for
this assumption. Kaounas did not testify that Cross gave ac-
tual appearances of inebriation. Kaounas testified that later in
the day, Cross returned and appeared to him inebriated at
that time, ‘‘cried like a little kid’’ and pleaded for his job
and argued that he was a good worker of long tenure and
underpaid at that. According to Kaounas, compassion over-
whelmed him as did his feelings for the employees with
whom he had been ‘‘working like friends together.’’ Accord-
597INTERNATIONAL DOOR
ingly, he immediately not only rehired Cross but raised his
pay from $7 to $8 per hour. The payroll records reveal that
raise was effectuated as of August 27, 1988. This was Cross’
largest incremental raise since his initial raise after hiring and
exceeded his prior 25-cent raise he received on promotion to
welder from helper on March 2, 1988. Gus Kaounas testified
that when he rescinded the discharge, he told Cross: ‘‘I hope
from now on you no booze, no drunk in my shop. That’s
your last chance, you know, you got, that’s it.’’
Cross conceded in cross-examination the discharge, denied
the impact on safety of the way he fastened the load, con-
ceded he asked for his job back with some money and was
rehired. He was not recalled, however, to rebut Gus Kaounas
as to the conversation involved in rehiring. However, his tes-
timony as to past tolerance of drug and alcohol use, and the
extent of past warnings concerning such use, constitutes an
implied denial that he was warned of discharge in August
1988 for continued drug and alcohol use. In cross-examina-
tion, Cross denied having consumed alcohol or having
smoked marijuana in morning before the incident and as-
serted he was ‘‘cold sober.’’ In view of lack of foundation
for Kaounas’ contrary assumption of prelunchtime intoxi-
cants, I credit Cross. Gus Kaounas testified that the discharge
was based on the insubordinate violation of his safety moti-
vated instructions, i.e., not for alcohol or drug abuse.
Cross admitted that the preexisting absenteeism policy
held an employee vulnerable to discharge on occurrence of
a 3-day unexcused absence and that it was commonsense to
telephone Respondent to advise of an intended absence. He
testified at first that prior to September 26, there had only
been one occasion when he failed to return to work from
lunch and that he had not been warned about recurrent fail-
ures to return after lunch. He denied that he went to a bar
and failed to return to work after lunch on January 19, Octo-
ber 10 and 13, December 25, April 1, and June 30, 1988.
He explained that on June 30, 1988, he did fail to return
from lunch but only after he had telephoned Kaounas and,
while sober, requested to talk to him about problems he was
having with his children. (That he would have requested
Kaounas’ advice on such a problem gives credence to the
characterization of the work atmosphere as friendly prior to
September 26.) He explained that the November 25
postlunch absence occurred but that he had informed Gus
and John Kaounas of his need to renew his automobile li-
cense plates (tags). He admitted that he departed the plant
after the 2:30 p.m. break and did not return on October 27
but asserted that he had permission to do so. Cross admitted
that he had been ‘‘talked’’ to a ‘‘couple of times’’ about fail-
ures to return to work after lunch but denied that he had
been ‘‘repeatedly warned’’ of discharge for continuing such
behavior. Cross testified that certain occasions, his nonreturn
to work after lunch was excused but, beyond the license
plate incident, he could not specify other occasions. With re-
spect to the license plant incident, he explained that when he
asked permission, Kaounas suggested he go to a nearby
Michigan State license plate issuing office. When he de-
parted, Cross discovered that he had left the necessary form
applications at home and so much time was involved in that
round trip that it prevented his return in the afternoon. He
testified without contradiction that he received no written
discipline for that incident nor had he ever received any
other kind of written discipline except for the September 26
incident.
Without citation of record evidence, Respondent asserts
that each incident of Cross’ failure to return from lunch was
without notice or permission. I find no testimony to support
such finding except the generalized testimony of Gus
Kaounas described below. Respondent also asserts, without
record citation, that such departure was disruptive to Re-
spondent’s business. I find no such supportive testimony.
The only record citation for the assertion that Cross was spe-
cifically warned of discharge for continued instances of a
failure to return to afternoon work is that of Gus Kaounas
with respect to the safety instruction insubordination dis-
charge, wherein Cross was admonished about ‘‘booze’’ and
drug abuse in general. Nothing was said about unnoticed,
unpermitted departures after lunch, in the incident did not in-
volve that kind of behavior on which Cross was supposedly
given a ‘‘last chance.’’ Furthermore, though not explicitly
contradicted, the ‘‘last chance’’ warning surely was denuded
of all seriousness by the simultaneous granting of a generous
raise in pay. Clearly, the thrust of that discharge motivation
was Gus Kaounas’ momentary pique at Cross’ perceived in-
subordination. It was not a calculated step as a progression
of discipline for specific misconduct, the next level which
warranted discharge. Because of the incongruity of a last
chance warning with the issuance of a pay raise, I do not
credit Gus Kaounas that such warning was made.
M. The January Discharge
Cross worked the morning shift of January 3. He testified
that he had obtained the permission of John and Gus
Kaounas to leave the premises at lunchtime. He admitted that
he did not return to work because of some unspecified ‘‘per-
sonal problems’’ that he had to attend and that he telephoned
Norwood at about 1:05 p.m. and told him this. According to
Cross’ uncontradicted testimony, Norwood, the admitted su-
pervisor and agent of Respondent, told him that it was ‘‘okay
for him to see to his problems and that he was excused from
working that afternoon. Further, Norwood did not even in-
quire as to the nature of his problems.
Cross testified that he did not return to work the next
morning but that he telephoned the plant at 8 a.m. and told
the secretary that he was ill but would try to arrive later in
the day. However, he did not report to work. He testified that
at 1 p.m. he telephoned Gus Kaounas and reported that he
still felt ill and would not be able to report for work. Ac-
cording to Cross, Kaounas told him he needed a doctor’s ex-
cuse which Cross protested that he could not afford a doctor.
Cross testified that Kaounas merely said, ‘‘Okay,’’ and he
would see him the next morning. Cross testified, without
contradiction, that in the past he had on occasion been absent
for illness and had never been asked for medical proof and
that there had never been any published written rules about
the matter. The employee handbook stated nothing about
medical proof.
On January 5, Cross reported to the plant in the morning.
He testified that, on discovering his timecard to be missing
at the timeclock, he asked Norwood about it and was re-
ferred to Gus Kaounas in the office. In the office according
to Cross, Gus Kaounas told him that John Kaounas had
pulled Cross’ card and had gone to Europe. When asked
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about his job, Gus Kaounas allegedly said that he would
have to wait on his brother John’s return.
Cross testified that before he left the office, he accused the
Kaounases of wanting to rid themselves of one of the few
remaining union supporters and that Gus Kaounas stated:
Yes, you Guys tried to screw up my company, you
tried to make me run my company the way somebody
else’s way, not mine. You cost me too much money in
lawyers.
Cross testified that he retorted that he was present and ready
to work but that Gus Kaounas said that there was nothing
he could do. As of that date, Fiddie, Wells, and Stoneburgh
had ceased employment.
Gus Kaounas testified that Cross violated the December
1988 lunchtime plant confinement rule ‘‘constantly’’ without
permission by going to the local bar or to the parking lot and
getting ‘‘booze’’ or ‘‘smoking dope’’ in the parking lot,
which he observed. He testified that he warned Cross a
‘‘hundred times’’ not to leave the plant at lunchtime but that
Cross insisted on leaving to buy a pizza. Kaounas testified
that this conduct occurred after the August discharge on un-
specified dates. When pressed for a specific date, he vaguely
placed one such instruction as having occurred in October or
‘‘something like that.’’ He then testified that he had given
such instruction even before September 26. I discredit this
for reasons already discussed. Gus Kaounas testified that on
January 3, Cross came to him and said that he was going out
to lunch for a pizza and that, after arguing about the possi-
bility of getting a pizza within the one-half hour allotted un-
paid lunchtime, Cross disobeyed his explicit order not to de-
part. Kaounas testified that he next heard from Cross 1-1/2
days later through Foreman Norwood who had transmitted
Cross’ notification of absence ‘‘because he had something to
do.’’ Kaounas testified, without corroboration, that Norwood
also told him that Cross had ‘‘walked off the job.’’ This is
not likely because it was supposedly Kaounas himself who
supposedly witnessed the alleged insubordinate ‘‘walk out.’’
According to Gus Kaounas, Cross appeared for work the
next morning but Gus Kaounas had himself removed Cross’
timecard and confronted Cross and told him that he had
‘‘automatically quit’’ and walked out of his job by having
departed for lunch against Kaounas’ repeated order not to
leave. The next day when Cross appeared to pick up his pay-
check Kaounas presented a termination form for his signature
on which it stated, ‘‘Walked out from work.’’ Cross signed
it but testified that he did so in order to obtain the paycheck.
Kaounas insisted that he told Cross he was free to sign or
not sign the document and that he even benignly suggested
to Cross that they remain friends and that Cross agreed.
Kaounas explained that he proffered friendship to Cross and
explained to him that he did so because maybe he might re-
turn ‘‘tomorrow’’ and ask for a job again and that he ought
not ‘‘close the door’’ to reinstatement. Such explanation
strains credulity, given Respondent’s argument that Cross
was terminated because of a drug and alcohol problem re-
lated to afternoon shift absenteeism that forfeited his ‘‘last
chance’’ for employment.
In cross-examination, Gus Kaounas testified that, prior to
union activity, Cross had, with Kaounas’ explicit approval,
gone out to lunch on an occasional basis. This not only con-
tradicts testimony as to the past frequency of departures, but
is also testimony as to how it had been a preexisting policy
to forbid lunchtime plant departures because of the alleged
drug and alcohol problem of Cross and other employees.
In cross-examination, Gus Kaounas in further self-con-
tradiction, testified that it was only after the union activity
that Cross left the plant for lunch on a daily basis in defiance
of everyone. He testified, ‘‘John Cross, he thought he’s king
over there.’’ Kaounas proceeded to give further contradictory
testimony as to whether employees asked for permission for
lunchtime plant departure. Kaounas testified in further cross-
examination, however, that after the September 26 meeting
Cross ‘‘started’’ to punch out when he departed for lunch in
obedience to John Kaounas’ statement to employees at the
September 26 meeting.’’ Why you guys go out to lunch
without punching the card.’’ (Thus, inadvertently did Gus
Kaounas concede that his brother’s complaint on September
26 related to punching the clock and not departure itself and
that, prior to union activity, Cross did not feel obliged to
punch the timeclock for lunchtime departure.) Gus Kaounas
then admitted that it was after the union activity that he told
employees ‘‘from now on’’ to punch the timecard for lunch-
eon absences. Kaounas also claimed that Cross’ practice of
not returning from lunch also started after the union activity.
Respondent’s own timecard evidence contradicts Kaounas.
Three of six timecard entries revealing total afternoon shift
absences predate union activity and the alleged last chance
warning of August 27, 1988. Cross’ testimony as to the cir-
cumstances of the June 30 absence is not contradicted. His
testimony as to having received and given permission for
some time off on November 25 was also uncontradicted, thus
leaving only evidence of total afternoon absence on October
10 and 13. His specific testimony of permission for early de-
parture at 2:30 p.m. on October 27 was not explicitly contra-
dicted.
In cross-examination, Gus Kaounas admitted that he had
been informed that Cross had telephoned the office at least
twice after his departure on January 3. Thus Cross’ testimony
as to telephonic notification must be credited. In cross-exam-
ination, Gus Kaounas admitted that he had had no objection
to drinking alcohol during nonworktime, thus contradicting
testimony that nonwork hour drinking on breaks and lunch-
time was a serious problem. His lack of credibility as to non-
alcoholic consumption during work hours was discussed
above.
There was no evidence adduced as to whether Respond-
ent’s treatment of Cross was or was not in accord with the
treatment of similar alleged misconduct of other employees
or whether Cross’ alleged misconduct was unique or com-
mon. No evidence was adduced to demonstrate that Respond-
ent had discharged or even disciplined other employees for
similar or any other kind of employee misconduct except for
some generalized testimony of some kind of discipline to the
substitute foreman for lunchtime absence which, for reasons
above, I discredit, i.e., there was no such prior policy, ergo
there could have be no such incident.
For the reasons elucidated above, the comparative credi-
bility of Crodd and Gus Kaounas leaves the latter at a severe
disadvantage. Furthermore, his demeanor suffered a lack of
spontaneity, conviction, and sincerity comparable to that of
John Kaounas. With all its faults, Cross’ testimony vis-a-vis
Gus Kaounas must be credited. Accordingly, I credit John
599INTERNATIONAL DOOR
Cross’ testimony as to the circumstances of his discharge and
as to the postdischarge confrontation described below.
N. Postdischarge Confrontation
On January 10, after the last unfair labor practice charges
had been filed, Cross telephoned Kaounas and asked him to
send his last paycheck to him. In that conversation, Gus
Kaounas abusively berated Cross for going to the ‘‘labor
Union’’ and to the NLRB. He threatened Cross with an ob-
scene manner of physical abuse and accused Cross of
‘‘screwing up his company’’ and encumbering him with law-
yers’ expenses.
IV. COMPLAINT ALLEGATION ANALYSIS
A. Cases 7–CA–28487 and 7–CA–28496(1)
1. Paragraph 10—the September 26 meeting
Paragraph 10 of the complaint involves the conduct of
John Kaounas at the September 26 group meeting. Based on
the foregoing factual findings, I conclude that John Kaounas
ordered the employees to a group meeting wherein he ex-
pressed his adamant opposition to union representation of
unit employees and implied the futility of efforts for union
representation because he would not allow it and which,
under the coercive atmosphere, as found created by further
coercive statements to be discussed hereafter, I find to be co-
ercive and violative of Section 8(a)(1) of the Act as alleged
in subparagraph (a).
I conclude that Respondent violated the Act as alleged in
subparagraph (c) by threatening employees with more oner-
ous work rules within the context of a threat to implement
more strict enforcement of previously unenforced rules and
a threat to effect a more rigidly disciplined work enforcement
in the event the employees chose representation by a union.
Kaounas did not innocently predict a more formalized rela-
tionship. The remarks were clearly calculated to be perceived
as threatened retaliation. The fact that employees were pe-
remptorily discharged as a vivid display of what was in store
for them because of their desires for third-party representa-
tion, makes untenable any contrary suggestion.
With respect to subparagraph (d), I conclude that the Re-
spondent did violate the Act by the implied threat of plant
closure if the employees chose union representation. I do not
premise this finding on the uncertain testimony of Cross with
respect to an explicit threat of closure by Gus Kaounas but,
rather, on the foregoing findings that John Kaounas made the
first of three repeated assertions that unionization led to busi-
ness failures of his competitors. Within the context of all his
comments, threats, and conduct then and thereafter, John
Kaounas made clear Respondent’s extreme, implacable oppo-
sition to unionization. The references to competitors’ closure
was not set forth to employees as a reasoned and carefully
worded objective prediction of what might happen if Re-
spondent acquiesced in bargaining to economic demands
which would render it noncompetitive. John Kaounas did not
express to employees an objective factual basis on which he
based a belief ‘‘as to demonstrably probable consequences
beyond his control,’’ free from a context of implicit retalia-
tion. See NLRB v. Gissel Packing Co., 395 U.S. 575 (1969).
According to John Kaounas’ own version of what he said,
the statement (which was preceded and succeeded by state-
ments of hostility to union representation) was a simplistic,
stark recitation of a chronology of disaster which implied a
post hoc, ergo propter hoc argument, i.e., business failure
follows unionization; therefore it necessarily causes business
closure. The context was pregnant with expressed and im-
plied retaliatory animus. I therefore find the reiterated ref-
erence to competitor’s business failures because of unioniza-
tion on September 26 and 28 to have constituted a threat of
Respondent’s business closure if the employees chose union
representation. Compare Superior Coal Co., 295 NLRB 439
(1989); Marathon LeTourneau Co., 208 NLRB 213, 222
(1974); Hertzka & Knowles, 206 NLRB 191, 194 (1973);
Hasbro Industries, 254 NLRB 587 (1981).
Because of the uncertain, ambiguity and confusion of testi-
mony with respect to subparagraphs (e) and (f) as to exactly
what was said, when and by whom, I make no findings
thereon. The complaint paragraph does not contain a sub-
paragraph designated ‘‘(b).’’
2. Paragraph 11—September 27 confrontation
This paragraph alleges that on September 27, John
Kaounas solicited and encouraged employees to withdraw
their union support and threatened an employee for sitting
next to a union adherent. The only evidence of any coercive
conduct on this date relates to the unalleged conduct of Gus
Kaounas whose threats on this date were substantially re-
peated by John Kaounas later, and for which a remedial
order will be sufficient without further findings on Gus
Kaounas’ unalleged coercive remarks on September 27 to
Wells and Rosbury in the plant parking lot.
3. Paragraph 12—September 28 John Kaounas’ conduct
Subparagraphs (a) and (b) allege threats to ‘‘bring in other
individuals to perform’’ unit member jobs and threats of
plant closure.
Because of the imprecisions and ambiguity in the recollec-
tions of Wells and Cross as to the possibility of strikes, etc.,
made at the first meeting on September 28, I can premise no
findings therein. As stated above, I found Wells and Cross
to be essentially honest witnesses and more reliable and cred-
ible than John or Gus Kaounas despite their lack of com-
plete, mutual corroboration of all comments made by John
Kaounas. I therefore find that Kaounas, on September 28, re-
iterated the absolute futility of union representation efforts
because there was ‘‘no way’’ it would happen, the repeated
threat of closure implicit in the competitor business failure
allusion, and threatened to restrict production and employ-
ment to nonunit workers and thereby cause layoffs of em-
ployees in the event the employee chose union representa-
tion. Such conduct clearly constitutes a coercive threat en-
compassed within the alleged violations in subparagraphs (a)
and (b). I therefore find that on September 28, 1988, as al-
leged in subparagraphs (a) and (b) of paragraph 12 of the
complaint, Respondent conveyed to employees the futility of
their union representation efforts by telling them that it
would never permit union representation and that it would
restrict production in order to limit available work only to
nonunit persons and also threatened business closure if the
employees chose union representation and therefore violated
Section 8(a)(1) of the Act.
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Subparagraph (c) alleges the coercive solicitation of the
employees’ repudiation of the Union by withdrawing their
union card authorizations. Respondent’s arguments and cita-
tions of Board law are appropriate only to employer assist-
ance to employees regarding union disaffiliation in a non-
coercive context. The afternoon session of September 28,
1988, which was preceded and succeeded by unlawful con-
duct, was conducted in an atmosphere permeated with coer-
cion. John Kaounas’ conduct is not remotely comparable to
an innocent polling of employees’ union desires. The re-
peated demand for public confession of union representation
support and solicitation of union repudiation and withdrawal
of union cards, within the context found above, is manifestly
coercive, and I find, violative of Section 8(a)(1) of the Act.
Subparagraph (d) alleges an implied promise to remedy
employee grievances. The evidence in support of this allega-
tion is based on the uncertain, fragmentary recollection of
Cross as to the postmeeting confrontation with John Kaounas
on September 28, which I find is insufficiently precise to
support a finding thereon. Stoneburgh’s testimony also fails
to reveal express or implied promises to remedy grievances
but, rather, suggests the opposite, i.e., conditions of employ-
ment could not be changed pending NLRB proceedings.
4. Paragraph 13—coercive interrogation by Norwood
Based on the foregoing findings of fact, I conclude that by
its supervisor and agent Ron Norwood at the second meeting
on September 28, Respondent coercively interrogated em-
ployees concerning union activities by demanding public dis-
closure of their ‘‘ringleader.’’
5. Paragraph 14—conduct by Gus Kaounas on
September 28, 1988
I find insufficient, clear, and reliable evidence of Gus
Kaounas’ alleged statements at the September 28 meeting or
on or about that date.
6. Paragraph 15—the discriminatory discharges of
September 26
The factual findings reveal that Cross, Kinney, and
Gargarilla were discharged as a vivid, paradigmatic dem-
onstration of the kind of retaliatory imposition of stricter
work rules and more rigidly disciplined work environment
that would befall employees if they chose union representa-
tion. The discharges were thus a direct consequence of the
union activities of employees in general and, therefore, viola-
tive of Section 8(a)(3) of the Act.
7. Paragraph 16—October allegations
concerning Stoneburgh
The factual findings fail to support a finding that
Stoneburgh received a wage increase and assignment to less
arduous work assignments that were inconsistent with past
practice and policy.
8. Paragraph 17—medical benefits bestowed
Because of the vagueness and uncertainty of Cross’,
Wells’ and Gargarilla’s testimony in this regard, I credit John
Kaounas as to why he evaluated the three employees’ eligi-
bility for medical insurance coverage, and I find the evidence
insufficient that he acted contrary to past practice in denying
coverage to Cross and Wells (contrary to complaint allega-
tion) and granted coverage to Gargarilla.
9. Paragraph 18—profit-sharing benefits
There is insufficient credible, convincing evidence that
Fiddie, Kinney and Wells were admitted into Respondent’s
profit-sharing plan for the first time in October 1988 as al-
leged. The evidence reveals a longstanding practice of dis-
tribution of profit-sharing accrued benefits and fails to dem-
onstrate any inconsistent Respondent behavior in 1988.
B. Case 7–CA–28783
1. Paragraph 11—November wage and benefit promises
In view of the foregoing credibility resolutions, I conclude
that as part of a whiplash ‘‘carrot and stick’’ technique of
union representation discouragement, John and/or Gus
Kaounas, in mid-November, told employees Wells and Cross
that it could not do anything ‘‘now’’ for employees, includ-
ing pay raises because of the pending representation claims
by the Union, they ‘‘could do better’’ for the employees who
‘‘could get more now,’’ i.e., if it were not for that
unwithdrawn pending claim. I find that such statement, in ef-
fect, constitutes a promise to increase benefits and wages if
the employees reject the Union and, thus, a violation of Sec-
tion 8(a)(1) of the Act as alleged.
2. Paragraph 12—interrogation
During the foregoing confrontation referred to in para-
graph 12, I find that John and/or Gus Kaounas threatened
employees with discharge because of the union activity of
employees on behalf of union representation and, in the con-
text of the above-described promise of benefit and accom-
panying threat, coercively interrogated Cross and Wells by
demanding to know why they were instigating union orga-
nizing activities, thus violating Section 8(a)(1) of the Act as
alleged.
3. Paragraph 13—January 10 threat
The credited evidence establishes that on or about January
10, Gus Kaounas threatened to inflict on Cross, in an ob-
scene manner, bodily injury because of his activities on be-
half of and in support of the Union.
4. Paragraphs 14 and 15—threats to withhold and actual
withholding of wage insurances from everybody
It is clear that an employer violates Section 8(a)(3) and (5)
of the Act when, during a period of refusal to bargain with
the employees’ designated bargaining agent, and particularly
in a context of union animus, it deviates from a past practice
and policy of reviewing and granting discretionary wage in-
creases, despite having informed the employees that it had
done so because of the unresolved question concerning rep-
resentation. Guta Permold Corp., 289 NLRB 234 (1988);
Peabody Coal Co. v. NLRB, 725 F.2d 357 (6th Cir. 1984).
See also Parma Industries, 292 NLRB 90 (1988), where the
employer told employees that it suspended a past practice of
periodic raises for the ostensible reason of avoiding ‘‘bribe’’
accusations during a union election campaign. There, an
8(a)(1) and (3) violation was nonetheless found by the
Board.
601INTERNATIONAL DOOR
In this case, amidst a plentiful union animus context dur-
ing the fall of 1988, John Kaounas told Wells that despite
a ‘‘list of’’ employees who would otherwise receive imme-
diate wage increases according to outstanding policies, some
would be given because of the pendency of the NLRB peti-
tion and unfair labor practice charges, i.e., he threatened un-
lawful withholding of wage increases. John Kaounas further
admitted that he told Cross that he would not even review
Cross’ request for raise increases, despite other Respondent
testimony that, in the past, such request activated a review
and consultation between John and Gus Kaounas. Thus John
Kaounas admitted the unlawful deviation from past practice,
i.e., the merit review on request because of Cross’ ‘‘case
with the Union,’’ and he admitted telling this to Cross.
The evidence fails to establish that any particular em-
ployee was actually denied a pay raise that otherwise would
have been granted had it not been for the pendency of the
petition and charges. However, the evidence does establish,
and I find, that Respondent in the fall and late 1988, unlaw-
fully told its employees that, other than new employees, the
employees would not receive wage increases due to them
and would not be granted discretionary merit raise reviews
to which past practice and policy entitled them because of
the pending demand for union recognition and the pending
proceedings before the NLRB, and thereby violated Section
8(a)(1) of the Act. I find that the withholding of requested
merit reviews also constituted violations of Section 8(a)(3) of
the Act.
5. Paragraph 16—Christmas bonuses
The factual findings fail to support these allegations.
6. Paragraph 18—the employee handbook
The unprecedented direct distribution of an employee
handbook in December 1988 was admittedly precipitated by
John Cross’ challenge, on behalf of his fellow employees, to
John Kaounas’ spurious claims of the preexistence of en-
forcement of certain rules. It was a concomitant part of Re-
spondent’s retaliatory conduct on September 26. I credit
Cross, for reasons already discussed, that the handbook was
distributed on John Kaounas’ announcement to employees
that because they wanted a union they would have to follow
the rules. Regardless of the preexistence of the undistributed
handbook and rules therein in written or verbal form, the
handbook distribution and the newly instituted plant confine-
ment rule served as a reiteration of the unlawful retaliatory
conduct of September 26, i.e., the stricter and more onerous
work rules, stricter enforcement of older rules and an unprec-
edented rigidly disciplined work environment because of
union representation efforts. By such conduct Respondent
violated Section 8(a)(1) and (3) of the Act as alleged.
7. Paragraphs 13 and 17—the discharge of John Cross
and subsequent threat
At the hearing Respondent argued that Cross abandoned
his employment and, in effect, quit his job because he saw
the ‘‘handwriting on the wall,’’ i.e., that he was about to be
discharged. Gus Kaounas testified that he himself removed
Cross’ timecard and, in effect terminated Cross, albeit char-
acterizing an insubordinate lunchtime departure a ‘‘walk
out’’ and an ‘‘automatic quit.’’ He was silent as to any prior
imminent decision to discharge Cross. The credited evidence
reveals the following. Cross shortly after receiving an un-
precedented pay raise despite an emotional incident with Gus
Kaounas, engaged in union activity. During the pendeny of
the Union’s claim to representation, Respondent displayed
extreme union animus and engaged in unlawful acts of retal-
iation and discrimination. Respondent subsequently perceived
Cross and Wells to be particularly identified with the Union
and threatened them with loss of employment before they
could enjoy the benefits of union representation if ever Re-
spondent was subjected to that detested prospect. Cross was
further perceived as a protagonist for the Union, and as one
engaged in concerted, protected activities on behalf of co-
workers, i.e., he ‘‘pressed the issue’’ of the work rules,
thereby precipitating the handbook distribution, the pending
petition and early unfair labor practices were characterized to
him as ‘‘your case with the Union,’’ and he was seen as a
frequent champion for pay raises not only for himself but for
all the other unit employees. On the day of his January 3
afternoon absence, he had been given permission to leave by
Gus Kaounas and had been explicitly given permission by
Norwood not to return. When Cross called in to report ill-
ness, he was ordered to produce unprecedented medical proof
of illness. He was refused employment on the false claim
that he walked off his job without permission. After his dis-
charge, he was threatened with obscene physical injury be-
cause of his having sought the assistance of the Union and
the processes of the Board.
In response to the strong prima facie showing that the dis-
charge was motivated, in part if not entirely, because of
union animus, the Respondent has failed to adduce credible,
convincing evidence that Cross had a drug and alcohol abuse
problem which, in conjunction with an absenteeism problem,
had directly precipitated his discharge which would have oc-
curred in any event in accord with past practice and policy.
Thus I find that the General Counsel sustained the burden
of proving a prima facie case and Respondent failed the bur-
den of proving that Cross would have been discharged not-
withstanding his union activity. Wright Line, 251 NLRB
1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982). I find that Respondent violated Section
8(a)(1) and (3) of the Act by its discriminatory discharge of
John Cross on January 5, 1989, and that it violated Section
8(a)(1) of the Act by Gus Kaounas’ threat to John Cross to
do him obscene bodily injury because he sought the assist-
ance of the Union and the processes of the Board.
C. Breach of Bargaining Obligations
The Union’s attainment of majority employee designated
exclusive bargaining agent by virtue of the execution of valid
representation authorization cards by a majority of unit em-
ployees on September 23, 1988, is almost beyond dispute.
Respondent’s allusion to beer consumption in the cir-
cumstances falls far short of showing fraud or mental impair-
ment of the card signers. I have discredited any implicit sug-
gestion by John Kaounas that any of the employees gave him
any indication that they did not stand behind their designa-
tions prior to his unlawful solicitation of their repudiations
in September 28. Thus, on September 28, Respondent re-
fused recognition of the Union following its ascertainment
from the substitute foreman that the Union’s claim was true
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and after it unlawfully coerced employee repudiation of the
Union.
Respondent’s refusal of recognition occurred within the
context of extreme union animus and unlawful conduct
which continued to January 5, 1989, when it had, through a
combination of fortuitous resignations and its unlawful dis-
charge of Cross, achieved the reduction of known union card
signers to a comfortably safe minority. The evidence firmly
establishes a bad-faith refusal to recognize the Union on Sep-
tember 28, 1989, in violation of Section 8(a)(1) and (5) of
the Act.
The Supreme Court in Gissel, supra, 395 U.S. at 613–614
of its decision, held that a bargaining order is appropriate
under the circumstances as exist herein where the unfair
labor practices were ‘‘outrageous’’ and ‘‘pervasive’’ and
where, I find, as here, traditional remedies will not provide
the probability of holding an uncoerced election process. The
threat of plant closure itself has long been viewed by the
Board as constituting a lingering and irradicable form of co-
ercion. Milgo Industrial, Inc., 203 NLRB 1196 (1973);
Jimmy-Richard Co., 210 NLRB 802, 804 (1974), enfd. 527
F.2d 803 (D.C. Cir. 1975). That conduct Respondent com-
pounded by immediate preemptive retaliatory discharges and
other egregious retribution, continuing for months thereafter
until the known card signers’ majority status was safely deci-
mated.
The facts of this case convinced me that the likelihood of
recidivist conduct is strong enough to preclude electoral lab-
oratory conditions. Further, it would be a stain against justice
and a mockery of the objectives of industrial labor stability
for Respondent to avoid a validly imposed labor obligation
merely through the natural turnover of its labor complement
and the inherent delays of adjudication of its own unlawful
conduct. I do not believe Respondent ought be allowed to es-
cape such obligation by such claimed exculpation any more
than it would be allowed to do so had it not bargained after
a certification of union majority status on election. I there-
fore find that a bargaining order is a necessary remedy in the
interest of justice as well as to industrial labor stability. See
Quality Aluminum Products, 278 NLRB 338 (1986), which
cites and discusses the opinion of the court of appeals in Ex-
change Bank, 264 NLRB 822 (1982), enfd. 732 F.2d 60 (6th
Cir. 1984).
Accordingly, I find Respondent violated Section 8(a)(1)
and (5) of the Act by its refusal to recognize and bargain
with the Union on and after September 26, 1988, and by its
unilateral implementation of work rules in December 1989
and its discharge of John Cross insofar as it was in pursu-
ance of those rules.
On the foregoing findings of fact and on the entire record
herein, I make the following
CONCLUSIONS OF LAW
1. All full-time and regular part-time production and main-
tenance employees, including truckdrivers, employed by
International Door, Inc., its plant located at 8001 Ronda,
Canton, Michigan, but excluding electricians office clerical
employees, guard and supervisors as defined in the Act, con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act.
2. On September 23, 1988, a majority of the employees
of Respondent, International Door, Inc., in the appropriate
unit designated and selected the Union, Local 508, Inter-
national Association of Bridge, Structural and Ornamental
Iron Workers, AFL–CIO as their representative for purposes
of collective bargaining.
3. At all times since September 23, 1988, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the exclu-
sive representative of the employees in the appropriate unit
for the purpose of collective bargaining with respect to rates
of pay, wages, hours, of employment and other terms and
conditions of employment.
4. The Respondent has engaged in unfair labor practices,
set forth above in the analysis section of this decision, which
affect commerce within the meaning of the Act.
REMEDY
Having found that Respondent engaged in violations of
Section 8(a)(1), (3), and (5) of the Act, I shall recommend
that it be ordered to cease and desist therefrom and take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Having found that Respondent unlawfully discharged John
Cross, Tony Gargarilla, and Ron Kinney from September 26
to 28 and discharge John Cross again on January 5, 1989,
and refused thereafter to reinstate him, recommend that Re-
spondent be ordered to offer John Cross immediate and full
reinstatement to his former position or, if that position no
longer exists, to a substantially equivalent position, without
prejudice to his seniority and other rights and privileges, and
to make John Cross, Tony Gargarilla, and Ron Kinney whole
for any loss of earnings suffered as a result of its unlawful
conduct by payment of a sum equal to that which they would
have earned absent the discrimination, with the backpay and
interest computed in accordance with the formula set forth in
F. W. Woolworth Co., 90 NLRB 289 (1950), and with inter-
est thereon to be computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987). I shall
also recommend that any reference to their terminations be
removed from their employment records.
Inasmuch as I have found that Respondent breached its
bargaining obligations under the Act by refusing to recognize
and bargain with the Union and by instituting unilateral
changes affecting wages, hours, terms, and conditions of em-
ployment, I recommend that Respondent be ordered to recog-
nize and bargain with the Union and to take certain affirma-
tive action in this regard, including rescission of new work
rules unilaterally implemented in December 1988, a return to
the status quo ante with respect to the enforcement of old
rules, and immediate reinstatement of its past practice of re-
viewing an employee’s eligibility for a merit pay raise, on
request for such review, and grant such raise if deemed meri-
torious after giving notice and opportunity to bargain with
the Union as to the amount of each raise, and grant retro-
active increases to John Cross and/or any other employee to
whom it would have given raises on a merit review had it
not refused that employee’s request for merit review because
of the pendency of a demand for union recognition an Board
proceedings. Any such raise should be computed to the ex-
tent appropriate, as prescribed in Ogle Protection Service,
183 NLRB 682 (1970).
603INTERNATIONAL DOOR
1 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 objec-
tions to them shall be deemed waived for all purposes.
2 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 Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended1
ORDER
The Respondent, International Door, Inc., Canton, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Expressing to employee the futility of union represen-
tation efforts by telling them it will in no way permit union
representation.
(b) Threatening employees with more onerous work rules,
a more strict enforcement of preexisting rules or a more rig-
idly disciplined work environment if they choose union rep-
resentation, or effectuating such threats to discourage their
union activities and desires for union representation.
(c) Threatening employees with plant closure if they
choose union representation.
(d) Threatening to reduce production and limit available
production work to nonunit persons if they choose union rep-
resentation, and thus cause layoffs.
(e) Coercing employees to repudiate and withdraw their
authorizations for union representation.
(f) Coercively interrogating employees as to their own or
other employees’ union activities or union support.
(g) Discharging employees by discriminatory enforcement
of work rules, by enforcement of unlawfully promulgated
work rules, or because of their union activities and sym-
pathies, or because of other concerted, protected, activities
protected by the Act in order to discourage such activities by
its employees.
(h) Promising to employees increased benefits and wages
if they reject union representation.
(i) Threatening to withhold merit wage increases from em-
ployees that would have otherwise been granted were it not
for the pendency of a demand for union recognition and
pendency of related Board proceedings.
(j) Refusing to review employees’ eligibility for merit in-
creases, on an employee request according to past practice,
because of the pendency of a demand for union recognition
and pendency of related Board proceedings.
(k) Threatening employees with bodily injury because they
sought the assistance of a labor organization and the proc-
esses of the Board.
(l) Refusing to recognize and bargain with its employees’
designated bargaining agent for the appropriate unit of em-
ployees or unilaterally instituting new work rules or unilater-
ally effectuating stricter enforcement of old work rules, with-
out notice to and opportunity for bargaining with their des-
ignated bargaining agent.
(m) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain with Local 508,
International Association of Bridge, Structural and Orna-
mental Iron Workers, AFL–CIO as the exclusive bargaining
representative of its employees in the appropriate unit and if
agreement is reached as to wages, hours, and other terms and
conditions of employment, embody the understanding in a
signed written document. The appropriate unit is:
All full-time and regular part-time production and
maintenance employees, includling truck drivers, em-
ployed by International Door, Inc., at its plant located
at 8001 Ronda, Canton, Michigan; but excluding elec-
tricians, office clerical employees, guards and super-
visors as defined in the Act.
(b) Rescind new work rules unilaterally implemented in
December 1988, and return the status quo ante with respect
to the enforcement of old rule and manner of discipline for
violation of old rules prior to September 26, 1988.
(c) Immediately reinstate its past practice of reviewing an
employee’s eligibility for a merit wage increase when the
employee requests one in accordance with past practice, and
grant such wage raise request, if deemed meritorious, after
bargaining with the Union as to the amount of each wage
raise, and grant retroactive increases to John Cross and any
other employee whom it would have given raises on a merit
review had it not refused that employee’s request for a merit
review because of the pendency of a demand for union rec-
ognition and Board proceedings, to be computed in the man-
ner set forth in the remedy section of this decisions.
(d) Offer John Cross immediate and full reinstatement to
his former position or, if that position no longer exists, to a
substantially equivalent position, without prejudice to his se-
niority and other rights and privileges, and make whole John
Cross, Tony Gargarilla, and Ron Kinney for any loss of earn-
ings suffered as a result of its unlawful conduct in the man-
ner set forth in the remedy section of this decision, and re-
move any reference of their discharges from their work
record.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Canton, Michigan facility copies of the at-
tached notice marked ‘‘Appendix.’’2 Copies of the notice, on
forms provided by the Regional Director for Region 7, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.