Metalite Corp.

National Labor Relations Board - Board Decisions

Aug 17, 1992

308 N.L.R.B. 266 (N.L.R.B. 1992)

266
308 NLRB No. 54
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Referred to as the General Counsel.
2 Unless otherwise noted, all events took place in 1991.
3 An order consolidating cases issued on June 26, 1991.
4 The General Counsel’s exhibits will be cited as G.C. Exh. fol-
lowed by the appropriate exhibit number; the Respondent’s exhibits
as R. Exh., and references to the transcripts as TR.
Subsequent to the hearing the General Counsel introduced records
showing the disposition of certain cases stemming from the arrest of
various Metalite employees. Having received no objection from Re-
spondent, the exhibits are hereby admitted into evidence as G.C.
Exhs. 22 to 33.
Metalite Corporation and General Drivers, Ware-
housemen & Helpers Local Union No. 89, a/w
the International Brotherhood of Teamsters,
AFL–CIO. Cases 9–CA–28487–1,–2, and 9–CA–
28535
August 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On February 25, 1992, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel filed exceptions and a supporting brief, and
the Respondent filed a brief in opposition to the excep-
tions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Metalite Corporation, New
Albany, Indiana, its officers, agents, successors, and
assigns, shall take the action set forth in the Order.
James E. Horner, Esq., for the General Counsel.1
Joseph A. Worthington, Esq. and Robert J. Schumacher, Esq.
(Smith & Smith), of Louisville, Kentucky, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon charges
filed on April 23 and 24 and May 8, 1991,2 a complaint and
notice of hearing issued on June 11,3 alleging that Respond-
ent, Metalite Corporation, violated the National Labor Rela-
tions Act, by discriminatorily discharging three employees
and threatening employees with loss of jobs. During the
hearing, I granted General Counsel’s motion to further
amend the complaint to allege that the Respondent had un-
lawfully interrogated an employee. The Respondent submit-
ted timely answers denying the commission of any unfair
labor practices.
A trial was held in this matter on October 30 and 31 and
May 1, at which time the parties had the opportunity to ex-
amine and cross-examine witnesses and introduce documen-
tary evidence. On the entire record, including the parties’
posttrial briefs, my observation of the witnesses’ demeanor
and under Section 10(c) of the Act, I make the following4
FINDINGS OF FACT
I. AS TO JURISDICTION
At all times material herein, Respondent, a corporation,
has engaged in the manufacture and distributon of lighting
fixture parts at its New Albany, Indiana facility. During the
12 months prior to the issuance of the complaint, Respond-
ent, in the course and conduct of its business operations, sold
and shipped from its New Albany facility products, goods,
and materials valued in excess of $50,000 directly to points
outside the State of Indiana. Accordingly, the Respondent ad-
mits and I find that the Metalite Corporation 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.
The Union is now, and has been at all times material here-
in, a labor organization within the meaning of Section 2(5)
of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The principal issues to be resolved in this case are:
(1) Whether Respondent violated Section 8(a)(1) and (3)
of the Act by unlawfully terminating Gregory Long, Peter
Wrocklage, and Rita Grut.
(2) Whether Wrocklage was a statutory supervisor as the
Respondent contends.
(3) Whether Respondent independently violated Section
8(a)(1) of the Act by impliedly threatening employees with
job loss, and interrogating employee Alan Early about meet-
ing with an NLRB agent.
B. Background
Respondent, a manufacturer of lighting parts, is a closely
held corporation whose stock is wholly owned by its presi-
dent, Marvin Friedman. Friedman’s son, Wayne, is vice
president, while his wife, Rose Friedman, serves as treasurer
and supervises the packing department. At the time of the
events giving rise to this proceeding, the Company conducted
its operations with a work force of approximately 115 em-
ployees, most of whom were assigned to one of three major
production departments: press and trim, spinning and finish-
ing (including anodyzing and buffing procedures). In addi-
tion, there were several maintenance employees and a pack-
ing department composed of approximately 15 employees
who prepared the lighting parts for shipment.
In addition to the Friedmans, two other officials held sen-
ior executive posts: Charles Roberts served as Production
Manager and Al Williams held the title of floor supervisor
267METALITE CORP.
5 Prior to 1991, two union campaigns were mounted at Respond-
ent’s facility, both of which failed.
6 The General Counsel called a fifth witness, Hines, who was still
employed by Respondent at the time of the hearing. On the under-
standing that Hines’ testimony would be redundant and cumulative,
I granted the General Counsel’s request to proffer that, if permitted
to testify, Hines would have described the conditions in the buffing
room in April in terms substantially similar to those of the previous
government witnesses.
and purchasing manager. Each department had one or two
leadmen, while the buffing section also had a foreman,
Willie Malone. Whether Wrocklage’s duties as leadman in
the press and trim department qualified him as a supervisor
within the meaning of the Act is at issue in this case.
C. The Discharge of Greg Long
1. Long’s union activity
Greg Long was hired in November 1989 and thereafter,
worked exclusively in Respondent’s press and trim depart-
ment. Long testified that on becoming interested in union
representation, he contacted a Teamsters agent in early April
and soon thereafter, received 100 union authorization cards
and Teamsters literature in the mail. He gave some of the
cards to two coworkers in another department and, in an ef-
fort to conceal his activities, asked them to distribute them
only to those who could be trusted. During his lunchbreak,
Long handed out cards and pamphlets to others in his own
department. He also discussed the Union with his fellow
workers and attempted to convince them that representation
could be beneficial. Long explained that his efforts at secrecy
were prompted by a warning from his leadman, Peter
Wrocklage, that employees who were involved in past union
campaigns, had been terminated.5 Apparently, Long’s efforts
to veil his union activities were unsuccessful, for on the day
after he began handing out cards, employees approached him
in the plant asking for them.
Long further testified that about a week after his union ac-
tivity began, he noticed that Marvin and Wayne Friedman
were spending more time than usual walking through his
work area. In fact, he observed that Marvin and Rose Fried-
man were arriving at the plant at 9:30 a.m. rather than 12:30
p.m. as was their custom. Marvin Friedman did not deny this
assertion. Instead, he explained that he felt it was necessary
to spend more time at the plant following a police drug raid
at the plant in the latter part of March.
On April 18, less than a week after Long signed an au-
thorization card, he was summarily discharged. The parties’
vastly different versions of the events leading up to the dis-
charge are set forth below.
Long testified that on April 18, shortly after a regular
break period at approximately 2:50 p.m., Production Manager
Roberts asked him to transfer to the buffing department. Al-
though Long often had asked for the opportunity to earn
more by transferring to another department, he stated he had
never expressed any desire to work in buffing. He told Rob-
erts he was reluctant to accept the more lucrative buffing as-
signment because in his words, it was a ‘‘nasty’’ place to
work.
2. The buffing area
Respondent’s buffing department was housed in self-con-
tained quarters comprised of one large room and an adjacent
smaller area on the second floor of the facility. Long testified
that Respondent routinely advertised for and hired men
weighing no less than 190 to 200 pounds for the buffing de-
partment because the greatest percentage of the work there
required that the employees exert considerable pressure on
their machines to remove a black, greasy compound from the
interior portion of the reflector. A small percentage of the
buffing work involved polishing the flanges (or rims) of the
reflectors, and could be performed by somewhat smaller
men, for this work called more for manual dexterity than
muscle. Respondent had three regular employees detailed to
this work when Long was assigned to join them.
Long testified that he occasionally carried parts to the
buffing department but refused to go inside because of the
pervasive black dust that was produced by the buffing. He
stated that throughout his employment with Respondent, one
was greeted by a black cloud when the doors to the buffing
room were opened. He further maintained that at the end of
the workday, buffers were coated with the black dust.
Three other employees, called as government witnesses,
claimed that the conditions in the buffing department through
the date of Long’s discharge, were as deplorable as he had
described them. Wrocklage asserted that ‘‘No one wants to
go to the Buffing Department. . . . the buffing dust is ex-
tremely thick where these men are.’’ (Tr. 191.) He acknowl-
edged that Respondent had installed a new duct system, but
maintained that it was not operational in mid-April. Bridwell
likened the room to one that had been on fire with soot just
hanging in the air. Alan Early added that the Buffing room
was dark enough to be hazardous.6
Respondent’s witnesses, on the other hand, insisted that by
April, conditions in the buffing rooms were excellent. In-
deed, Marvin Friedman extolled the buffing room environ-
ment as ‘‘absolutely wonderful.’’ He did concede, however,
that a ventilation problem had been detected when inspectors
from the National Health and Safety Commission (OSHA)
conducted a surprise inspection in December 1990 and deter-
mined that respirable dust levels were ‘‘slightly’’ in excess
of acceptable norms in the buffing area. In order to comply
with OSHA’s standards, Respondent installed new ventilation
equipment which Friedman maintained, completely rectified
the problem prior to March.
An OSHA report, introduced into evidence as General
Counsel Exhibit 19, indicates that the ventilatory problems in
the buffing room were not as slight as Friedman suggested.
Thus, during an earlier visit in August, 1990, the OSHA re-
port states that the failure to clean ‘‘Silica and Aluminum
dust (which) was allowed to accumulate on light fixtures,
floors and machinery in the Buffing Department’’ constituted
a serious violation. In December 1990, inspectors found an-
other ‘‘serious’’ violation in that local exhaust ventilation
systems were not used . . . to maintain the exposure’’ of
employees in the east and west rooms’’ below the prescribed
limits for Silica (sic) and respirable dust.’’ Specifically,
based on samples taken from two work stations in both parts
of the buffing room, OSHA determined that one employee
was exposed to respirable dust at ‘‘4.6 times the calculated
permissible exposure limit’’ while the second ‘‘was exposed
to l.99 times the calculated permissible exposure limit.’’
(G.C. Exh. 19 at p. 6) These violations were supposed to be
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Willie Malone not only claimed that the buffing room was im-
maculate in April, as far as he was concerned, it was ideal for the
entire time Respondent occupied the facility. Not even the Friedmans
were so rash as to make such an insupportable claim.
8 See, e.g., Midwestern Mining & Reclamation Co., 277 NLRB
221, 243 (1985).
9 Long testified without dispute that the 3/4-inch flange was wider
than the typical flange on most reflectors. As a consequence, he ex-
plained that in order to properly buff these surfaces, he had to exert
more than normal pressure which produced greater amounts of dust.
10 Employees in the buffing department wore fibrous masks which
covered the bottom half of their faces.
abated by March 20. However, it was not until May 8 that
Respondent requested that OSHA conduct a followup inspec-
tion. That inspection did not take place until September 11,
at which time OSHA gave the Company a clean bill of
health.
Neither the OSHA report nor any other document of
record establish precisely when the adverse conditions in the
buffing room were abated. If corrective measures were com-
pleted in March, as Friedman claimed, it is curious that Re-
spondent waited until May to request another OSHA review.
Further, Respondent failed to introduce any business records
which might have established when the new ventilation
equipment was installed and running. Consequently, absent
documentary proof, I am not persuaded that Marvin and
Wayne Friedman’s glowing reports about air quality in the
buffing room accurately reflected the working conditions
there on or about April 18.7 Instead, I find Long’s and
Wrocklage’s reports of dismal conditions in the buffing room
in mid-April far more reliable. In contrast to Marvin Fried-
man’s penchant for hyperbole and Wayne Friedman’s vague
generalities, Long and Wrocklage appeared to be credible
witnesses whose testimony was reasonable and consistent.
Their descriptions were corroborated by three other employ-
ees, one of whom still worked for Respondent at the time
of this hearing. His testimony, given against his own eco-
nomic interests, warrants great weight.8 Accordingly, I find
that as of April 18, the dusty conditions in the buffing room
were as Long and his fellow workers described them.
3. Long’s transfer to the buffing room
Disregarding Long’s hesitancy to accept a transfer to the
buffing room, Roberts insisted that they needed reliable peo-
ple there. When Long asked if he could return to the press
and trim department if he was unable to handle the buffing
assignment, Roberts assured him they would work something
out.
Roberts took Long to Buffing Room Foreman Willie Ma-
lone, who, in turn, asked one of the buffing employees to in-
struct Long on the use of a particular machine. Long testified
that he attempted to buff 3/4-inch wide exterior flanges as
directed, but, after little more than an hour, realized that his
work was not up to par.9 Even worse, he found that fumes
and dust, fallout produced by the buffing, were permeating
the paper fiber filter covering his face, making it difficult for
him to breathe.10 Long explained that he has had a deviated
septum since birth. With Long seated less than 4 feet away
from me while he testified, I was in an advantageous posi-
tion to note that his speech had a distinctly nasal quality.
Based on this observation, together with finding him to be
a trustworthy and sincere witness, I am convinced that he did
suffer breathing difficulties during his stint in the buffing
room.
Long further related that he was unable to find a super-
visor to obtain permission to leave the shop. After a co-
worker told him that the buffers simply left when they want-
ed to speak with Wayne, Long, too, went to Friedman’s of-
fice on his own. On failing to find the vice president there,
Long returned to his buffing machine, cleaned up and again
left the room. On encountering Malone, Long explained he
was having difficulty breathing and needed to see Wayne.
With apparent indifference, Malone told Long that he had to
complete the parts he was buffing before the shift ended.
When Long insisted on speaking with Wayne, Malone ac-
companied him to the office. Long recalled that enroute, they
met buffing room employee, John Snyder. Malone ordered
Snyder back to work, chastising him for not finishing his
quota with a half hour left before the end of the shift. Long
testified without controversion that Snyder replied, ‘‘F—
you. I’m not going to work.’’ (Tr. 132.)
In the office, Malone told the younger Friedman that Long
was having a problem. Then, according to Long, without fur-
ther adieu, Friedman accused him of leaving his work area
without permission, rejected his request to return to the press
and trim unit and terminated him with a notice which stated
that he ‘‘left work area without authorization.’’ (G.C. Exh.
9.) This was the only occasion on which Long had been dis-
ciplined for any reason during his 18-month tenure with the
Respondent.
Malone and Wayne Friedman gave altogether different
versions of their dealings with Long which led to his dis-
charge. Malone alleged that Long first came to the buffing
room after lunch at approximately 12:30 p.m. The foreman
said that he noticed that shortly after Long began working,
he left his machine running and was missing for some 35 to
40 minutes. When Long eventually returned, he told Malone
he had been in the men’s room. At this time, Malone merely
gave him a verbal warning.
Malone continued that not 10 minutes later, Long again
left his machine. When he returned, he told Malone for the
second time that he had gone to the restroom. Malone stated
that he then told Long, he had ‘‘no other choice but to let
you go.’’ He escorted Long to the executive office where he
told Wayne Friedman that he was terminating Long for leav-
ing his work assignment. He also informed Friedman that he
had ‘‘given him several warnings for it and it seems like it
doesn’t get anyplace.’’
Friedman added that he was surprised when Malone told
him he wanted to discharge Long, but approved the action
because he felt constrained to support his foreman. Friedman
also explained that the Company had received a special order
dated April 1 for approximately 40,000 polished flanges.
Since there were only three men in the buffing department
to do such work, Respondent needed one or two more men
to assist them. Friedman maintained that while heavy men
were needed to buff the interior of the reflectors, height and
weight were not considerations in buffing the flanges. Hence,
he insisted that Long’s height and weight—5 feet 6 and 160
pounds—were immaterial for what Respondent needed, and
what Long possessed, were ‘‘good hands.’’
269METALITE CORP.
11 Friedman offered three justifications, each a nonsequitor, to jus-
tify his failure to end the meeting: (1) there still were employees in
the press and trim department suspected of selling drugs, (2) em-
ployees had quit, presumably because of the drug raid, and (3) he
felt his supervisors were capable of handling the situation.
12 The Employee Handbook expressly encourages employee-em-
ployer communication in the following terms:
If you desire information or counseling, or just want to talk over
a troublesome problem . . . don’t hesitate to consult with us
. . . . If we can help you, we want to do so. (G.C. Exh. 2 at
3.)
D. The Discharge of Peter Wrocklage
1. The employees’ meet with Wayne Friedman
Wrocklage, first employed by Metalite in 1986, was pro-
moted to a leadman position in the press and trim department
in 1987. He recommended that Long be hired and found him
to be an excellent worker who was conscientious enough to
work overtime without pay to compensate for any time he
may have missed. At Robert’s request, Wrocklage evaluated
Long in 1990 and reported that he was a ‘‘very good’’ em-
ployee. (R. Exh. 36.) In 1991, he and Long were driving to
and from work together. Consequently, he knew on the after-
noon of April 18 that Long had been fired.
The following morning, most of the employees in the
press and trim department, including Wrocklage and a sec-
ond leadman, Don Lambert, agreed that during their 10 a.m.
break they would urge Wayne Friedman to rehire Long.
Wrocklage explained that the year before, employees in the
spinning department met en masse with Friedman and per-
suaded him to rehire one of their number.
As planned, at the start of the morning break, some 13 to
15 employees gathered outside Friedman’s office. According
to Wrocklage, Lambert first asked Friedman if the group
could meet with him, and when he agreed, they filed into his
office in orderly fashion. On being asked why Long was ter-
minated, Friedman answered that he left his job area.
Wrocklage told Friedman about Long’s breathing problem
and Lambert volunteered that Long just had purchased a
house. Others pointed out that many employees who had re-
ceived disciplinary warning notices still were employed at
Metalite. Friedman, who reportedly did most of the talking,
repeatedly stated that Long was fired for leaving his work
station. Wrocklage stated without dispute that throughout the
hour long meeting, the employees remained calm and polite
and at no time did Wayne appear hostile. At approximately
11 a.m., the men returned to their jobs after Friedman agreed
to reconsider the discharge decision.
Friedman’s account of this meeting diverged somewhat
from Wrocklage’s. He contended that no one had requested
an appointment; instead, he found approximately 90 percent
of the press and trim employees already inside his office
when he arrived at 10:10 a.m. He acknowledged that he
could have ordered the men back to work ‘‘when they first
came in the office,’’ and certainly had the authority to dis-
band the meeting at any time. (Tr. 745.) He did not do so,
believing it was preferable to address their concerns.11
Friedman testified he checked Long’s personnel file after
the meeting but found no record of breathing problems, aller-
gies, or nasal surgery. Later the same day, he told his father
that he was terribly disappointed that Wrocklage had failed
to prepare him for the meeting in which the employees, in-
cluding the leadman, had ‘‘attack(ed)’’ him, that production
had been lost for an hour and that the entire factory had been
disrupted. (Tr. 746.)
By his own account, Marvin Friedman was appalled that
Wrocklage had displayed such ‘‘disgusting misjudgment and
miscalculation’’ in prompting the employees to storm into
the office ‘‘without notice . . . announcement (or) . . .
prewarning’’ to engage in ‘‘an inquisition.’’ (Tr. 61.) Fried-
man’s condemnation of Wrocklage’s conduct was not at all
tempered by his purported commitment to Respondent’s open
door policy between employee and management.12 Although
he confirmed that employees had ‘‘complete latitude’’ to
visit their immediate supervisor or come directly to him or
his son to clarify any problems, he insisted that such meet-
ings had to be handled properly by first making an appoint-
ment. Friedman further stated that he had been questioning
Wrocklage’s performance for a considerable period of time
for he found that the leadman never was available in his de-
partment, was not skilled on the machine which he alone
used, and was deficient in setting up other machines. Fried-
man said that Wrocklage’s role in the meeting, together with
his other alleged shortcomings led him to ask Roberts and
Williams to review the leadman’s work record.
That same afternoon, a fellow employee suggested to
Wrocklage that Long had been fired for distributing union
authorization cards. Wrocklage repeated this to Roberts who
immediately took him to Marvin Friedman’s office. There,
Wrocklage again asserted that he believed the cause of
Long’s discharge was his union activity. Wrocklage testified
that Friedman ignored his comment and instead, fumed at
him for having participated in the meeting that morning.
Wrocklage then left the office, but within a short period of
time, Roberts instructed him to return. When he did, he re-
ceived a notice dismissing him because his ‘‘conduct as
leadman of the press and trim department is disappointing
. . . (he failed) ‘‘to learn all the techniques required . . .
(and) displayed poor leadership.’’ (G.C. Exh. 13.)
Marvin Friedman alleged that Wrocklage apologized to
him for his unseemly conduct that morning and admitted he
should have handled the situation differently. Condemning
Wrocklage’s conduct as ‘‘abhorable (sic) . . . astounding
and unforgiveable’’ Friedman refused to relent, explaining
that Wrocklage’s apology was too late and unconvincing.
Wrocklage, on the other hand, denied having tendered an
apology.
2. Wrocklage’s alleged supervisory status
The Respondent contends that regardless of its reasons for
discharging Wrocklage, he was a supervisor within the mean-
ing of the Act and, therefore, not entitled to statutory protec-
tion. To prove this contention, Respondent introduced, inter
alia, a notice which was posted on the Company bulletin
board on October 30, 1987 when Wrocklage and two other
employees were promoted to leadmen, stating that ‘‘We are
exceptionally happy to have our men move up from within
to a position on the management team.’’ (R. Exh. 16.) A
year later, in November 1988, Respondent had Wrocklage
sign a memo which outlined his responsibilities. Thereafter,
Respondent introduced evidence to show that Wrocklage ful-
filled many of the itemized duties.
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Wrocklage testified that he completed evaluation forms twice
but Respondent introduced only one set of such documents.
14 At least until the week prior to Long and Wrocklage’s dis-
charge, Mrs. Friedman arrived at the facility at approximately 12:30
p.m. with her husband.
Item one on the list authorized the leadman to ‘‘rec-
ommend the hiring of personnel upon your interview of can-
didates.’’ (R. Exh. 17.) Wrocklage acknowledged that he oc-
casionally took job applicants on a tour of the plant, but de-
nied that this amounted to an interview. Contradicting
Wrocklage’s view of his limited role in the hiring process,
Respondent produced an employment application which
showed that he effectively recommended against hiring an
individual who was not offered a job. By the same token,
Respondent accepted Wrocklage’s recommendation that Long
be hired even though he had no manufacturing experience.
The second and third itemized responsibilities set forth in
the job description invested leadmen with a role in disciplin-
ing and discharging personnel. In this regard, Wrocklage rec-
ommended and signed a warning notice to one employee,
Donnie Mudd, and subsequently recommended his dismissal.
Roberts testified that Mudd was discharged soon thereafter
without management making further independent inquiry.
Wrocklage prepared the narratives on some of the discipli-
nary notices, and from the text, it is apparent that he was a
direct observer of the misconduct alleged. For example, in
one warning notice, Wrocklage wrote ‘‘you punched out and
left your job at lunch, you did not return after lunch, you did
not tell your leadmen or your supervisor that you were not
going to return . . . .’’ (R. Exh. 25.) Other disciplinary no-
tices simply bear his signature. In these instances, Wrocklage
explained that the warning was written by a management of-
ficial and given to him to sign as a mere formality.
Another itemized duty required that the leadmen ‘‘evaluate
personnel for raises and bonuses.’’ To this end, in the sum-
mer of 1990, leadmen completed evaluation forms for each
employee in their departments.13 Wrocklage added a hand-
written note on some of the forms recommending that the in-
dividual receive a raise. Roberts testified that he and Wayne
Friedman relied upon these evaluations in determining
whether raises were warranted. Similarly, when management
asked him for his opinion about a particular employee, or
when employees asked him to intercede on their behalf,
Wrocklage prepared brief written requests for raises for var-
ious employees, each of whom received a pay increase there-
after. Further, in conformance with item 5 on the job descrip-
tion list, Wrocklage initialed timecards to indicate that over-
time was approved.
Wrocklage routinely performed other functions which Re-
spondent claimed were indicia of his supervisory role. Thus,
after conferring each morning with Production Manager Rob-
erts about the work to be accomplished that day, Wrocklage
detailed specific assignments to the press and trim employ-
ees. However, as Wrocklage explained, employees often
needed no such instruction for they simply returned to work
that was not completed the previous day. If an employee fin-
ished his assignment, Wrocklage would shift him to another
task, a responsibility noted in item 10 of Respondent’s Ex-
hibit 17. Although he spent approximately 90 percent of his
time operating a machine in regular production work,
Wrocklage was available throughout the day to assist press
and trim employees should a problem arise and would check
on the employees’ product to assure consistency.
As prescribed by item 6 of the job description, Wrocklage
attended some, but not all, management and departmental
meetings. At one such meeting held during the course of the
union organization effort, Marvin Friedman asked the partici-
pants, including Wrocklage, to read some material titled,
‘‘Do’s and Don’ts For Supervisors.’’
Wrocklage maintained that the title of leadman did not
place him in management’s ranks for he continued to spend
90 percent of his time at a machine in regular production
work. Other employees who worked in his department con-
firmed that the vast proportion of his time was spent in regu-
lar production work. Moreover, he was paid an hourly wage
rate and time and one-half for overtime, just as other rank-
and-file workers were. He had no authority to directly im-
pose discipline or fire anyone. He stated that he simply filled
out evaluation forms, wrote recommendations for pay raises
or signed disciplinary notices when instructed to do so by a
senior official. He further stated that as a rule, he did not
know if his recommendations were put into effect.
Wrocklage explained that he could not independently award
overtime work or authorize payment for it by initialing the
employee’s timecard without first obtaining Robert’s ap-
proval. Contrary to provisions in his job description, he did
not close and secure the building, nor attend ‘‘all’’ manage-
ment meetings. A number of employees, including Long, tes-
tified that they regarded Roberts as their supervisor, not
Wrocklage. However, at one point, Long stated inconsistently
that a promotion to a leadman’s position would elevate him
into the ranks of management.
C. The Discharge of Rita Grut
Rita Grut was hired on February 7 for Respondent’s pack-
ing department where approximately 15 women cleaned, in-
spected, and packaged the lighting components for shipment.
Ellen Shaw served as acting leadperson until R. Friedman,
the regular supervisor, arrived on the scene.14 A painting de-
partment, staffed by three or four employees, adjoined the
packing area.
The General Counsel concedes that Grut played no role in
the union organizing campaign. Indeed, Grut acknowledged
that her concerted activity consisted of talking to her co-
workers about unions in favorable terms. Specifically, Grut
testified that on the same day that Marvin Friedman gave his
antiunion speech, she told a few employees in her depart-
ment, including Shaw, that she had been a union steward at
a previous place of employment, that a union might benefit
them, and might improve conditions for women who were
not paid equally to men doing the same work. Lastly, she
urged them to listen carefully to both sides before making up
their minds.
A former employee, Judy Law, corroborated Grut’s testi-
mony that she had spoken out on behalf of union member-
ship in general. Shaw, too, recalled having heard that Grut
talked about her membership in a union, but said that another
employee had relayed this information to her.
On or about April 30, R. Friedman transferred Grut to the
Painting Department where she worked with two long-term
employees, Tina Rogers and Laverne Frazier. According to
271METALITE CORP.
15 The packing department employees were assigned to work at
bench-like tables which each accomodated three or four employees.
16 Respondent had a 90-day probationary period. Shaw testified
that Grut was a difficult and uncooperative employee. She main-
tained that Grut resisted authority and would not heed reasonable in-
struction. As Shaw put it, Grut had her own way of doing everything
and was very argumentative. Shaw recalled one episode in which she
gesticulated, as was her custom, while talking with Grut. Grut an-
grily warned Shaw not to point a finger in her face. At this juncture,
feeling incapable of handling the matter, Shaw took Grut to Wayne
Friedman’s office to let him resolve the dispute. Shaw further stated
that she reassigned Grut to different work stations, thinking that per-
haps the problem was hers and that Grut might get along better with
others. However, Shaw maintained that Grut seemed to create prob-
lems no matter where she was stationed. Further, Shaw asserted that
Grut continually made mistakes. Although she Tr.ied to work coop-
eratively with Grut, Shaw said that she insisted on doing things her
own way and took offense when corrected. Former employees Law
and Bridwell came to Grut’s defense. Law said that in her view,
Grut was a good worker and got along with most of the other em-
ployees. She conceded that a few of the women, including Shaw,
had problems with Grut and did not think she was performing well.
Similarly, Bridwell rejected the notion that everyone was having dif-
ficulties with Grut, or that she rejected authority and was argumen-
tative. Both women confirmed Grut’s view that Frazier and Rogers
were unproductive troublemakers.
Grut and another former employee, Kitty Bridwell, Rogers,
and Frazier were referred to by some as the ‘‘Snoop Sis-
ters,’’ because of their penchant for finding out everything
that was happening in the plant. Grut testified that Rogers
and Frazier soon began to criticize her work and complained
about her production to R. Friedman. After receiving this
complaint, R. Friedman spoke to Grut in confidence, telling
her that although there were plans to purge the plant of 20
employees, she wanted to retain everyone in packing. She
therefore urged Grut to work harder and pay heed to Frazier
and Rogers.
Grut stated that try as she might, she was unable to satisfy
the two women who continued to give her contradictory or-
ders when she returned to the painting department. Accord-
ing to Kitty Bridwell, Frazier, and Rogers were purposely
harrassing Grut, for she overheard R. Friedman telling them
to be mean to someone whom they wanted to be rid of.
The following day, May l, Williams asked Grut to report
to his office where he gave her what was alleged to be her
second warning. The slip stated that her performance was
‘‘sub par’’; and that noticable improvement in her productiv-
ity had to be shown in the next 2 weeks. Grut remonstrated
that she felt she was being harassed because she had told
employees to consider the Union’s advantages and had been
a union member for 15 years. At this, Williams asked if she
thought a union would be good for the plant. Grut said she
was unsure but that the employees needed to make up their
own minds about the matter.
Grut insisted that she had not been disciplined before, but
she apparently was referring to the fact that she had not pre-
viously received a written warning. She conceded, however,
that she had an encounter with another packing employee
which led Ellen Shaw to tell her to ‘‘shut up and go back
to work.’’ (Tr. 426.) Grut insisted on bringing that incident
to Wayne Friedman’s attention, who resolved the matter by
reassigning Grut to a different station in the packing depart-
ment.15 Grut apparently did not consider Friedman’s direc-
tive as a disciplinary statement.
The following afternoon, after Grut had tiffs with R. Fried-
man, Frazier, and Rogers, Williams handed her a dismissal
notice which briefly stated she was being terminated because
she had proved to be unsatisfactory during her probationary
period.16 Williams stated that Shaw, too, had reported to him
that Grut was unable to get along with other employees in
the Packing Department.
D. Evidence of Alleged Independent 8(a)(1) Violations
1. Threat of job loss
The consolidated complaint alleges that in mid-April,
Marvin Friedman threatened that equipment would be re-
moved from the facility and employees terminated if they se-
lected the Union as their representative. This allegation stems
from comments Friedman allegedly made during a meeting
with employees on April 26.
Rita Grut and Charles Bridwell both testified about this
meeting at which Friedman first addressed the employees
about the Respondent’s opposition to the Union’s latest orga-
nizational efforts. In particular, Grut recalled that among
other remarks, Friedman told the employees that the machin-
ery in the plant was not owned by the Respondent but by
other companies. He continued that ‘‘if he had to get the ma-
chinery . . . we wouldn’t have the wages, and the companies
would come and get the machinery . . . . [b]ecause they
wouldn’t want a union in there . . . .’’ (Tr. 419.)
Bridwell also remembered some of Friedman’s comments
at the first of two meetings held with employees about a
week after Wrocklage was fired. In particular, Bridwell re-
called that Friedman told the assembled workers that the
dyes used at Metalite were owned by outside companies or
agencies and would withdraw them because of their opposi-
tion to unions. Friedman indicated that this would mean that
Respondent’s work would be reduced and employees would
lose their jobs.
Friedman was not sure he had spoken with employees on
April 26. However, in a letter delivered to employees on
Monday, April 29, Friedman refers to ‘‘his talk to you last
Friday’’ which clearly supports a finding that the meeting
took place on April 26.
Apart from his failure to recollect addressing the employ-
ees on April 26, Friedman did not deny making the com-
ments which Grut and Bridwell attributed to him. Even if he
had, I would not be inclined to believe him for, as I already
have indicated, I did not find either of the Friedmans to be
credible witnesses.
2. Alleged unlawful interrogation
At the outset of the instant hearing, I granted General
Counsel’s motion to amend the consolidated complaint to
add a new paragraph 5(b), which alleged that on or about
August 9 or 16, Wayne Friedman violated Section 8(a)(l) of
the Act by interrogating an employee about possible meet-
ings with a Board agent and whether he was cooperating
with the Board in its investigation of Respondent’s alleged
unfair labor practices.
In support of this allegation, employee Alan Early testified
that on a Wednesday during the first or second week of Au-
gust, he left work early due to illness. On returning to work
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the following morning, Wayne Friedman summoned him to
his office and asked whether he had attended an NLRB
meeting the previous afternoon. Early assured Friedman that
he had been sick and had gone nowhere else but home.
Without naming Long and Wrocklage, Friedman then told
Early that the Company discharged one man because he left
his work area without permission and another man who
‘‘was getting too close to his employees.’’ (Tr. 395.) Early
stated he had no difficulty in identifying the men to whom
Friedman referred as Long and Wrocklage.
Friedman’s version of this incident closely conforms to
Early’s with one exception: he did not acknowledge actually
asking Early if he had attended an NLRB meeting, only
whether he left work because he was genuinely ill.
II. DISCUSSION AND CONCLUDING FINDINGS
A. Respondent Unlawfully Threatened Employees
Section 8(c) of the Act protects the expression of views,
argument or opinion as long as ‘‘such expression contains no
threat of reprisal or force or promise of benefit.’’ In other
words, an employer’s right to free speech is not absolute; it
must be balanced against the employees’right to organize or
refrain from organizing, free of coercion, restraint and inter-
ference. One of the more troubling issues in balancing an
employer’s rights under Section 8(c) against employees
rights under Section 7 is to determine whether an employer’s
remarks about plant closure during a union organizational
campaign are permissible predictions or threats proscribed by
Section 8(a)(1). In drawing such distinctions, the Supreme
Court provided the following guidance in NLRB v. Gissel
Packing Co., 395 U.S. 575, 618 (1969):
[a] prediction must be carefully phrased on the basis of
objective fact to convey an employer’s belief as to de-
monstrably probable consequences beyond his control
. . . . If there is an implication that an employer may
or may not take action on his own initiative for reasons
unrelated to economic necessities and known only to
him, the statement is no longer a reasonable prediction
based on available facts, but a threat of retaliation
based on misrepresentation and coercion . . . .
As detailed above, Friedman railed against the Union at
two employee meetings in late April and early May. At the
first such meeting on April 26, he told the employees, inter
alia, that companies would remove their dyes from Metalite
if the plant was organized which would lead to a loss of
business and jobs. Neither when he made the statement, nor
at the trial, did Friedman point to any objective evidence to
support his remark. Without any doubt, his statement was not
based on demonstrably probable consequences, but on rank
speculation and a desire to fan employees’ fears of job loss.
As such, it was an unveiled threat designed to interfere with
the employees’ exercise of their Section 7 rights in violation
of Section 8(a)(1) of the Act.
B. Respondent Unlawfully Interrogated Early
Standing alone, Wayne Friedman’s one question to Alan
Early might be regarded as an isolated incident which did not
rise to the level of an unfair labor practice. However,
Freidman’s inquiry must be examined in context. See Sunny-
vale Medical Clinic, 277 NLRB 1217, 1218 (1985). Early
was not a declared union advocate and the question was not
put to him casually on the shop floor. Rather, Friedman, a
high-ranking member of management who happened to be
the owner’s son, summoned Early to his office after the
workday had begun, specifically to question him about his
whereabouts the previous afternoon. Friedman did not inno-
cently question Early just to find out if he had lied about
feeling ill the previous afternoon. His specific intent was to
probe whether Early, like Bridwell, had visited the NLRB in
preparation for the forthcoming trial. When Early responded
negatively, Friedman went on to justify the discharges of
Long and Wrocklage, sending Early a clear signal that he,
too, could suffer a similar fate. In these circumstances, Fried-
man’s questioning of Early was violative of Section 8(a)(1).
C. The 8(a)(3) Violations
1. Applicable precedents
The amended complaint alleges that the Respondent dis-
charged Long, Wrocklage, and Grut in violation of Section
8(a)(1) and (3). Denying any knowledge that they were en-
gaged in union activity, the Respondent contends that it law-
fully terminated each of the alleged discriminatees for rea-
sons that stemmed from their conduct on the job. Where, as
here, both lawful and unlawful motives are offered to explain
an employer’s conduct, the Board requires that the evidence
be assessed according to the burden-shifting analysis set
forth in Wright Line, 251 NLRB 1083, 1089 (1980), enfd.
662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989
(1982). Initially, the General Counsel must make a prima
facie showing that the employer knew of the employee’s pro-
tected activity and that this knowledge was a motivating fac-
tor in its decision to take discriminatory action. Once the
General Counsel has made this showing, ‘‘the burden of per-
suasion shifts to the employer to prove that the employee
would have . . . received the . . . claimed discriminatory
action in any event because of unprotected conduct.’’ Cham-
pion Parts Rebuilders v. NLRB, 717 F.2d 845, 849 fn. 6 (3d
Cir. 1983).
2. Long was discriminatorily discharged
As described above in the findings of fact, Long initiated
the organizational effort on behalf of the Teamsters in Re-
spondent’s plant. His efforts to keep his activities sub rosa
met with little success as evidenced by the fact that employ-
ees whom he had not contacted sought him out to ask for
authorization cards. Further, Al Williams admitted that his
secret sources informed him that a union campaign was un-
derway. Surely his informants also would have identified
Long as the leader of the prounion movement. Williams, a
senior management official who was on the scene during two
previous organizational efforts had to be well aware that his
employer was inalterably opposed to a union presence in the
plant. Therefore, it is inconceivable that he failed to pass on
this information to the Friedmans as quickly as it came to
his attention.
Apart from any other considerations, the coincidence of
timing between Long’s discharge and the start of his in-plant
union activities a week or two earlier, is suspicious enough
to give rise to an inference that Respondent acted out of dis-
criminatory motives. See, e.g., Abbey’s transportation Serv-
273METALITE CORP.
17 I do not believe that Long left his work station for an extended
period of time as Malone claimed. Even if he had, Respondent im-
posed a sanction which far outweighed the discipline dispensed to
other employees.
ices, 284 NLRB 698, 699 (1987), enfd. 837 F.2d 575 (2d
Cir. 1988).
But there is much more. Respondent’s explanation that
Friedman merely ratified Al Williams’ decision to terminate
Long because he absented himself from his work station is
preposterous. I have not the slightest doubt that in detailing
Long to the buffing room, Respondent set him up to fail.
Respondent claimed that it plucked Long from the Press
and Trim Department because it had an emergency buffing
order that had to be filled. However, the customer memo
upon which Respondent relied was dated April 1. If this
order created an emergency, it is difficult to explain why Re-
spondent waited until April 18 to attend to it. Further, it
makes little sense that Respondent would assign an inexperi-
enced employee to perform skilled work, particularly if it
had to be done in haste.
The most telling proof of Respondent’s illegal motivation
comes from its decision to fire Long for his first purported
offense, when it tolerated far worse behavior from a host of
other employees. At the outset, it is important to bear in
mind that Long was considered a good employee who had
no prior disciplinary problems. His blameless record need
only be weighed against the dossiers of Jacob Hutt, Rodney
Jones, or Ravone Effinger, to expose the pretextual nature of
Respondent’s defense. Friedman acknowledged that
Effinger’s attendance record in 1991 was atrocious. Malone
admitted he was his worst disciplinary problem. Moreover,
he revealed that he had fired Effinger three times, only to
rehire him when he promised to do better. Hutt received 13
written warnings including one for ‘‘leaving working stations
without authorization’’ while 10 days before Long’s dis-
charge, Jones was admonished for leaving the plant and not
returning. All three men still were employed at Metalite at
the time of trial. Yet, Long, who had no disciplinary record,
was offered no second chance.
In this same vein, Respondent continued to employ indi-
viduals who were convicted of drug offenses, notwithstand-
ing Marvin Friedman’s announcement that he would not tol-
erate such persons in his plant. Respondent correctly submits
that under guidelines of the Equal Employment Opportunity
Commission, the Company would be remiss if it fired em-
ployees on the basis of arrest record alone. However, the
General Counsel offered evidence that four of those arrested
were convicted and at least one of those convicted returned
to the plant. Marvin Friedman appeared to have little interest
in learning what ultimately happened to the 15 employees in-
volved, thereby suggesting that Respondent was far more
concerned with ridding itself of a union sympathizer than a
convicted criminal.
Ironically, while Malone was dragooning Long to the of-
fice, they encountered an employee who cursed the foreman
and flatly spurned his order to return to work. Malone ig-
nored this brazen misconduct, apparently finding Long’s con-
duct more offensive. Malone’s hard-nosed reaction to Long’s
alleged wrongdoing seems out of character for someone who
himself turned to his employer for understanding and a help-
ing hand when he was in trouble.
Wayne Friedman’s assertion that he felt constrained to
support his foreman’s decision to terminate Long is ludi-
crous. From his demeanor and testimony in this trial, it was
very clear that it was Malone who deferred to the Friedmans,
not the other way around.
Friedman had the authority to countermand Malone’s deci-
sion. He apparently felt no need to consult with Malone
when he promised the workers the following morning that he
would reconsider Long’s discharge. As a manager, it makes
little sense that he would allow an employee whose work
record was exemplary to be fired after one ostensible slip.17
At a minimum, he could have suggested that Long be reas-
signed to Press and Tr.im.
Friedman implied that he might have rehired Long if his
application form indicated he had a respiratory problem. If
Friedman was genuinely willing to investigate this claim, it
would have been far more reasonable for him to speak with
Long directly, rather than rely on the presence or absence of
checkmarks in appropriate boxes on an employment form.
Having conspired to fire Long, a model employee, on a
trumped up excuse, in order to purge a union activist from
its midst, it is hardly likely that Respondent seriously consid-
ered rehiring him, whether or not his breathing difficulties
were substantiated.
Based on all of the above, I find that the reason Respond-
ent offered for dismissing Long was pretextual. He was fired
for only one reason: he dared to engage in organizing activi-
ties on behalf of the Teamsters. It follows that in discharging
him, Respondent violated Section 8(a)(1) and (3). Limestone
Apparel Corp., 255 NLRB 722 (1981).
Wrocklage’s Discharge Is Unprotected
The Respondent submits that Wrocklage was a supervisor
within the meaning of the Act and, therefore, not entitled to
the protections afforded by the Act. Thus, the question of
Wrocklage’s employment status must be resolved as a
threshold issue before reaching the bona fides of his dis-
charge.
Under Section 2(11), a supervisor refers to:
any individual having authority, in the interest of the
employer, to hire, transfer, suspend, layoff, recall, pro-
mote, discharge, assign, reward, or discipline other em-
ployees or responsibly to direct them or adjust their
grievances or effectively to recommend such action, if
. . . such authority is not of a merely routine or clerical
nature, but requires the use of independent judgment.
It is well settled that to be classified as a supervisor, a per-
son need not meet all the criteria set forth in the statutory
definition. What is essential is that the supervisor exercise
independent judgment to a significant degree in performing
one or more of above-described duties. ‘‘The exercise of
some supervisory authority in a merely routine, clerical, per-
functory, or sporadic manner does not confer supervisory sta-
tus on an employee.’’ Somerset Welding & Steel, 291 NLRB
913 (1988). Although it is a close question and not altogether
free of doubt, after carefully weighing Wrocklage’s respon-
sibilities against the guidelines of Section 2(11), I am con-
strained to conclude that he performed some functions which
traditionally mark a low-level supervisor.
To be sure, the greatest percentage of Wrocklage’s work-
day was spent in operating a machine for which he was paid
274 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The record is silent as to how frequently or infrequently
Wrocklage was asked to assess job applicants.
19 On the recommendation of her boyfriend, a police detective,
Law was hired by Al Williams to investigate whether employees in
the plant were continuing to sell drugs. According to Law, she was
on an hourly basis just like the other employees. Moreover,
in distributing work assignments passed on to him by Rob-
erts, he simply served as a conduit, performing a function by
virtue of his greater experience in the department. Since the
employees generally knew what tasks they were to perform,
the distribution of work apparently did not entail the exercise
of independent judgment. Id. at 914; John N. Hansen Co.,
293 NLRB 63, 64 (1989). Moreover, he could not grant
overtime or authorize an employee to take time off without
first obtaining Roberts’ consent. His signing timecards also
was ‘‘routine or clerical in nature and insufficient to establish
supervisory authority.’’ John N. Hansen Co., supra.
The General Counsel submits that Wrocklage’s signature
on disciplinary warnings prepared by senior officials, was a
mere formality. However ministerial this task may have
been, Respondent’s officials apparently regarded his signa-
ture on the warning as a necessary part of the process and
confirmation that the notice went through the proper manage-
rial channels before it issued. If Wrocklage did not occupy
some role in the managerial hierarchy, there would have
been no reason for his superiors to require that his signature
consistently appear on the various disciplinary notices.
Moreover, Wrocklage was not always a passive actor in
the disciplinary process. The record establishes that on occa-
sion, he initiated disciplinary action and even effectively rec-
ommended that an employee in his department be fired. Fur-
ther, the evidence indicates that Wrocklage played a mean-
ingful role in the hiring process, for from time to time, he
interviewed and recommended or disapproved job applicants
for employment.18 Wrocklage maintained that he never sat
down and interviewed anyone, but evaluating the worth of a
prospective employee need not take place in a formal setting,
or in a sitting position. It is enough that he assessed appli-
cants while touring the plant with them; that thereafter, he
communicated his views to upper echelon management, and
that they then relied on his judgments.
Wrocklage also played an integral role in the job evalua-
tion process by filling out evaluation forms for each em-
ployee in his department. Wayne Friedman’s testimony that
he relied on these forms to determine whether a pay raise
would be granted was uncontested. While Wrocklage was not
responsible for the final decision with respect to wage in-
creases, he effectively contributed to them for there is no
suggestion that management conducted an independent eval-
uation prior to making its determination. Cf. Passavant
Health Center, 284 NLRB 887, 890 fn. 5 (1987). In addition,
the record shows, and Wrocklage conceded, that even apart
from the written evaluation process, men in his department
turned to him to intercede on their behalf and request that
they receive pay raises. In at least one case, Wrocklage’s
intervention was successful.
Wrocklage obviously felt closer to the men in his depart-
ment than he did to the senior officials in the plant and for
a substantial part of his workday, was involved in work no
different than that performed by other employees in Press
and Trim. However, while he had not ascended very far up
Respondent’s bureaucratic ladder, he did perform some su-
pervisory functions which separated him from the rank and
file. Thus, he was a low-level supervisor, he was a super-
visor nonetheless within the meaning of Section 2(11) of the
Act. I have not the slightest doubt that Wrocklage was termi-
nated for engaging in protected, concerted activity by chal-
lenging Respondent’s unfair termination of Long. However,
under the authority of Parker-Robb Chevrolet, 262 NLRB
402 (1982), I am constrained to conclude that he may not
invoke the Act’s protections to protest his discharge. It fol-
lows that the allegations in the complaint related to his
wrongful termination must be dismissed.
Grut Was Not Unlawfully Discharged
The propriety of Grut’s discharge, like Long’s, must be
evaluated in light of the standards articulated in Wright Line,
supra. Thus, the General Counsel bears the initial burden of
showing that that the predominant motive for Grut’s termi-
nation was her union activity.
Unlike Long, Grut was not deeply immersed in union ac-
tivity. However, her coworkers were aware of her sympa-
thetic approach to union representation. Shaw, acting lead
person in Friedman’s absence, acknowledged that she, too,
had heard that Grut had expressed prounion sentiments. More
importantly, Al Williams, one of Respondent’s senior offi-
cials, did not dispute the fact that Grut told him 1 day before
he terminated her that she had been a long-term union mem-
ber at her previous place of employment. His knowledge, to-
gether with Respondent’s patent antiunion bias, is sufficient
to support the inference that she was discharged in order to
remove another union sympathizer from the plant.
In defending the decision to fire Grut, Respondent relied
principally on Shaw’s testimony that Grut was an argumen-
tative and uncooperative employee who did not take direc-
tion well and who was continually at loggerheads with fellow
workers. I found Shaw to be a very credible witness who
seemed to blame herself for failing to find a satisfactory way
to establish a sound working relationship with Grut. I was
particularly impressed that Shaw decided to transfer Grut to
another work stations on the chance that she, rather than
Grut, was responsible for the friction between them. In other
words, she gave Grut the benefit of the doubt and made sure
she had an opportunity to succeed by working with others
with whom she might feel more comfortable. This was not
the conduct of a person who is acting out of discriminatory
motives. Moreover, Shaw’s problems with Grut began soon
after she was employed and before she had revealed her
union sentiments. Having observed the manner in which both
women in conducted themselves in the courtroom, I am con-
vinced that Shaw’s difficulties with Grut had nothing to do
with her expressed union sympathies. If Shaw, who seemed
quite even-tempered, was unable to maintain an equable rela-
tionship with Grut, then it is reasonable to believe, as Shaw
testified, that other women in the packing department had
similar problems working with her. Even Judy Law, who tes-
tified in Grut’s behalf, admitted that Grut did not get along
well with some employees and had been involved in several
arguments with her coworkers. She also confirmed that Shaw
had criticized Grut’s performance. Law’s testimony in this
regard is particularly revealing because she had every reason
to be antagonistic to the Respondent.19 Thus, Shaw’s testi-
275METALITE CORP.
abruptly terminated after she and her boyfriend had a serious falling
out.
20 If no exceptions are filed as provided by Sec. l02.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. l02.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
21 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
mony goes far to support Respondent’s theory that Grut was
discharged for her poor work and fractious temperament.
It is important to note that Williams prepared the May 1
warning for Grut which criticized her productivity even be-
fore she revealed her union sentiments to him. Moreover, the
disciplinary notice gave her an additional 2 weeks to prove
herself. If Respondent was intent on firing Grut because of
her union sentiments, it seems illogical that she would be
given this opportunity to improve her performance.
In defending Grut, both Law and Bridwell maintained that
she was a hard worker. It may well be that Grut tried her
best; yet, her best was not good enough according to Shaw,
who had a more seasoned eye than either Law or Bridwell.
Bridwell also asserted that she overheard Friedman plotting
with Frazier and Rogers to harass Grut in order to get rid
of her. I am reluctant to rely on Bridwell’s testimony in this
regard for she failed to mention this potentially damaging in-
formation until she was recalled on rebuttal during the final
moments of the hearing. It is difficult to imagine that she
somehow forgot such critical evidence during her direct ex-
amination. Accordingly, I conclude that the Respondent has
satisfied its burden of showing that it would have terminated
Grut in any event for reasons unrelated to her protected ac-
tivity.
CONCLUSIONS OF LAW
1. The Respondent, Metalite Corporation, is an employer
engaged in commerce within the meaning of Section (2), (6),
and (7) of the Act.
2. General Drivers, Warehousemen & Helpers, Local
Union No. 89, a/w International Brotherhood of Teamsters,
AFL–CIO is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. Respondent violated Section 8(a)(1) of the Act by
threatening employees with job loss in order to discourage
them from supporting the Union.
4. Respondent violated Section 8(a)(1) of the Act by inter-
rogating an employee whether he had met with an agent of
the National Labor Relations Board.
5. Respondent violated Section 8(a)(1) and (3) of the Act
by discharging Greg Long for engaging in union activity.
6. The unfair labor practices outlined above affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act by discharging Peter
Wrocklage and Rita Grut.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices in violation of Section 8(a)(1) and (3) of the Act,
I shall order it to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of
the Act.
Specifically, the Respondent shall be directed to offer em-
ployee Greg Long immediate and full reinstatement to his
former position, or if that position no longer exists, to a sub-
stantially equivalent position, without prejudice to his senior-
ity or other rights and privileges previously enjoyed. Further
the Respondent shall be ordered to make him whole for any
loss of earnings and other benefits, computed on a quarterly
basis from the date of his discharge to the date of a proper
offer of reinstatement, less any net interim earnings, as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987). The Respondent also shall be instructed
to remove from its files any reference to Long’s unlawful
discharge and notify him that this has been done and that any
such documents will in no way be used against them.
Lastly, the Respondent shall be ordered to post the notice
appended to this Decision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
The Respondent, Metalite Corporation, its officers, agents,
successors, and assigns, shall
1. Cease and desist from
(a) Discriminatorily discharging employees because of
union activities.
(b) Threatening employees with loss of jobs and discharge
if they support a union or seek union rep-resentation.
(c) Interrogating employees about whether they have met
with agents of the Board.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Greg Long immediate and full reinstatement to
former job or, if that job no longer exists, to a substantially
equivalent position, without prejudice to seniority or any
other rights or privileges previously enjoyed, and make
whole for any loss of earnings and other benefits suffered as
a result of the discrimination against him, in the manner set
forth in the remedy section.
(b) Remove from its files any reference to the unlawful
discharge and notify Greg Long in writing that this has been
done and that the discharge will not be used against him in
any way.
(c) 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.
(d) Post at its facility in New Albany, Indiana, copies of
the attached notice marked ‘‘Appendix.’’21 Copies of the no-
tice, on forms provided by the Regional Director for Region
9, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
276 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violation of the Act not specifically
found.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize, form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in these protected concerted
activities.
WE WILL NOT discharge or otherwise discriminate against
any of you for supporting Teamsters Local Union No. 89 or
any other union.
WE WILL NOT threaten you with job loss or discharge if
you join or support Teamsters Local Union No. 89 or any
other union.
WE WILL NOT interrogate you about whether you have met
with agents of the Board.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaran-
teed you by Section 7 of the Act.
WE WILL NOT offer Greg Long immediate and full rein-
statement to former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to se-
niority or any other rights or privileges previously enjoyed
and WE WILL make him whole for any loss of earnings and
other benefits resulting from discharge, less any net interim
earnings, plus interest.
WE WILL NOT notify Greg Long that we have removed
from our files any reference to discharge and that the dis-
charge will not be used against in any way.
METALITE CORPORATION