Outboard Marine Corp

National Labor Relations Board - Board Decisions

Jul 17, 1992

307 N.L.R.B. 1333 (N.L.R.B. 1992)

1333
307 NLRB No. 204
OUTBOARD MARINE CORP.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
2 We shall note our modifications seriatim in the order established
by the judge in his decision.
Outboard Marine Corporation—Calhoun and La-
borers’ Local Union No. 752 and Connie Davis.
Cases 10–CA–20636, 10–CA–21564, 10–CA–
21658, 10–CA–22106, 10–CA–22167, 10–CA–
22293, 10–CA–22643, and 10–CA–22709
July 17, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 28, 1989, Administrative Law Judge
Lawrence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the General Counsel filed an answering 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 briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions to the extent they are consistent with this de-
cision, and to adopt the recommended Order as modi-
fied and set forth in full below.2
A. The Revocation of the Settlement Agreements
The Union filed its first unfair labor practice charge
(10–CA–20636) on December 12, 1984, alleging that
the Respondent had discharged Larry Mulkey 5 days
earlier in violation of Section 8(a)(3) and (1) of the
Act. The Union filed subsequent charges (10–CA–
21564) on February 26, 1986, alleging that the Re-
spondent had violated Section 8(a)(5) and (1) of the
Act by refusing to bargain with the Union and refusing
to grant the Union access to the plant. It also alleged
that the Respondent had violated Section 8(a)(3) and
(1) of the Act by discharging Julius Sexton on January
14, 1986.
The Respondent and the Union settled these cases
with Board approval on May 31, 1985, and May 28,
1986, respectively. However, the Regional Director re-
voked these settlements on August 28, 1987, after in-
vestigating new charges which the Union filed against
the Respondent. These were filed between April 1986
and September 1987, and involved a variety of alleged
violations of Section 8(a)(5) and (3) of the Act. The
first charge of this series (10–CA–21658), filed on
April 2, 1986, alleged that the Respondent had violated
Section 8(a)(5) and (1) of the Act by refusing to bar-
gain with the Union, and Section 8(a)(3) and (1) of the
Act by refusing to recall the employees who had gone
out on strike in January 1986, and were then on a pref-
erential hiring list. The Regional Director issued his
consolidated complaint on August 28, 1987. This com-
plaint included numerous allegations of 8(a)(1) viola-
tions occurring (1) during the Union’s organizational
campaign which commenced in late 1984; (2) fol-
lowing the Union’s election victory on April 10, 1985;
(3) during the year of the union contract from January
1986 until January 1987; and (4) for a period there-
after, as to those who struck in January 1986 and re-
turned to the plant in 1987 and their supporters.
The judge found that the Respondent’s
postsettlement actions justified the Regional Director’s
revocation of the settlements. For the reasons cited by
the judge, we agree. Moreover, our failure to adopt the
judge’s decision in its entirety does not warrant a con-
trary result. Our findings here show conclusively that
the Respondent committed numerous unfair labor prac-
tices continually over an extended period of time com-
mencing with the Respondent’s attempt to thwart the
Union’s organizing campaign and concluding with the
Respondent’s attempt to nullify the reinstatement rights
of the strikers. It is well established that a settlement
agreement may be set aside and unfair labor practices
found based on presettlement conduct if postsettlement
unfair labor practices are committed. YMCA of Pikes
Peak Region, 291 NLRB 998, 1010 (1988); Lawyers
Publishing Co., 273 NLRB 129, 130 fn. 4 (1984), re-
versed on other grounds 793 F.2d 1062 (9th Cir.
1986).
The revocation of the settlements does not, however,
warrant the judge’s conclusionary finding that all
presettlement complaint allegations may be addressed
on their merits notwithstanding the expiration of the
10(b) period prior to the filing of any related unfair
labor practice charge.
The Respondent’s conduct generated multiple
8(a)(1) complaint allegations which had not been in-
cluded in the settled charges. The Respondent alleges
in its exceptions that, even if the settled charges were
properly reinstated, certain of the judge’s holdings in-
volved conduct not ‘‘closely related’’ either to the De-
cember 7, 1984 charge (10–CA–20636), or to the Feb-
ruary 26, 1986 (10–CA–21564) or April 2, 1986 (10–
CA–21658) charges. Redd-I, Inc., 290 NLRB 1115
(1988).
The General Counsel, pursuant to well-established
precedent, argues that the 8(a)(1) allegations are sup-
ported by the preprinted general catchall language,
‘‘[b]y the above and other acts, the above-named em-
ployer has interfered with, restrained and coerced em-
ployees in the exercise of rights guaranteed [them] in
1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The incidents at issue form the basis for the judge’s Conclusions
of Law 5 through 22.
4 See also Nippondenso Mfg. U.S.A., 299 NLRB 545 (1990).
Chairman Stephens filed a concurrence based on his partial dissent
in Redd-I, Inc., supra.
5 We note that one incident—Production Manager Fulmer’s De-
cember 1985 promise of a good supervisory position to Chief Union
Steward Ray Moore if Moore agreed to help Fulmer get rid of the
Union—parallels conduct alleged at later dates and is therefore cu-
mulative, having no impact on the remedy. It is thus unnecessary for
us to reach the merits of the allegation based on this conduct. See
Sewell-Allen Big Star, 294 NLRB 312, 315 fn. 11 (1989); R. L.
White Co., 262 NLRB 575 fn. 2 (1982).
Section 7 of the Act,’’ appearing on the standard
Board charge form.3
We agree with the General Counsel that the 8(a)(1)
allegations are properly considered in this proceeding,
but for the following reasons. After the judge issued
his decision in this case, we reconsidered the precedent
relied on by the General Counsel with respect to com-
plaint allegations involving Section 8(a)(1). In Nickles
Bakery of Indiana, 296 NLRB 927 (1989), we held
that the preprinted general catchall language may not
be relied on to support more particularized complaint
allegations. Instead there must be a showing of factual
‘‘relatedness’’ between the specific charge and the
8(a)(1) allegation of the complaint. The test is: (1)
whether the charge and complaint allegations involve
the same legal theory; (2) whether they arise from the
same factual circumstances; and (3) whether a respond-
ent would raise similar defenses to both allegations.
Id., slip op. at 5. We further refined this test in Beretta
U.S.A. Corp., 298 NLRB 232 (1990), in which we
found that 8(a)(1) complaint allegations of interroga-
tion, threats, and impression of surveillance were
closely related to the charge allegations of multiple
8(a)(3) and (1) violations based on conduct involving
a union activist (reprimanding, disciplining, with-
holding overtime work, withholding a wage increase,
suspending, and ultimately discharging the employee).
We noted that ‘‘all these actions were part of the Re-
spondent’s unlawful course of conduct in seeking to
defeat the union organizing campaign at its Accokeek
facility in the winter of 1987–1988.’’ Id. at 232 fn. 1.4
The incidents at issue here involve threats of plant
closure made to employees in November 1984 and
their repetition together with other various threats in
April 1985 (the election occurred on April 10), and in
December 1985 and January 1986. At these later times,
the Respondent made threats not only of plant closure
but also threats that employees would lose their jobs
and never work in the county again if they struck; that
it was futile for employees to support the Union be-
cause they were never going to get a contract (‘‘it
would be a cold day in hell’’); and that the Respondent
was going to get the Union out of the State of Geor-
gia. There were also threats that the Respondent would
give bad recommendations and did not want any em-
ployees with union cards, and promises of benefits for
getting rid of the Union.
We find that all of these incidents are closely related
to the charge allegations. Thus the December 1984
threats of plant closure were closely related to the
charge allegation of unlawful discharge of Larry
Mulkey as components of the Respondent’s unlawful
course of conduct in seeking to defeat the union orga-
nizing campaign at its Calhoun plant. Further, the
threats at election time in April 1985 and at the end
of that year and the beginning of 1986 are all closely
related to the charge allegations of the unlawful dis-
charge of Julius Sexton, the unlawful failure to recall
strikers, and the unlawful failure to bargain with the
Union in good faith. These threats, together with the
other 8(a)(1) allegations, are all components of the Re-
spondent’s unlawful response to the Union’s election
victory on April 10, 1985. Accordingly, the merits of
the 8(a)(1) allegations at issue are properly before us.5
B. The 8(a)(1) Allegations
The judge made findings of multiple 8(a)(1) viola-
tions occurring prior to the representation election on
April 10, 1985, between the election and the end of the
strike on January 21, 1986, and during 1986 and into
1987. (The 1-year contract expired on January 21,
1987, and strikers continued to return to the plant
thereafter.)
The Respondent excepts to these findings by the
judge for the most part by simply reciting the judge’s
decision in numbered paragraphs in its ‘‘Exceptions’’
document. We find no merit to these perfunctory ex-
ceptions. The judge’s findings in question are sup-
ported by the credited evidence. Accordingly, we adopt
those findings for the reasons set forth by the judge.
We also find no merit to the Respondent’s excep-
tions that challenge certain 8(a)(1) findings on the
ground that supervisors were not involved in the inci-
dents on which they were based. Thus, the Respondent
makes the conclusionary assertion that the evidence as
credited failed to show that Greg Free, Steve Fowler,
and Bo Harris were statutory supervisors at certain
times when they engaged in proscribed conduct. We
find no merit to this assertion and find, for the reasons
stated by the judge, that all three of these individuals
exercised supervisory authority. At the minimum, man-
agement told employees to report to them, and they
were the first line of authority in the employees’ daily
work with respect to such matters as overtime, time
off, and discipline. We have found such individuals to
be statutory supervisors. See Cannon Industries, 291
NLRB 632 (1988).
Finally, the Respondent excepts to certain other
8(a)(1) findings by asserting that there was no coercion
in the following conduct: (1) remarks made by Super-
1335OUTBOARD MARINE CORP.
6 See J. P. Stevens & Co., 244 NLRB 407, 421 (1979), enfd. 668
F.2d 767 (4th Cir. 1982).
7 See Without Reservation, 280 NLRB 1408, 1417 (1986).
8 See Naum Bros., Inc., 240 NLRB 311, 317–318 (1979), enfd.
637 F.2d 589 (6th Cir. 1981).
9 See J. P. Stevens & Co., supra at 438 (‘‘the likelihood that the
leading of incumbent employees would produce responses favorable
to company counsel . . . .’’).
10 See McCarty Processors, 292 NLRB 359, 363–365 (1989).
visor Dick Andrews to employees Ty Bramlett and
Molly Evans in November 1984; (2) remarks made by
Supervisor Howard Gallman to employees Reba Cook
and Evelyn King in December 1985; and (3) remarks
made by Plant Manager Sam DeFalco’s to employees
assembled for a luncheon meeting in September 1986.
Andrews stated that management knew Larry Mulkey
was campaigning for the Union and that he should
watch his step because management might find ways
to terminate him. Gallman stated that the Respondent
would never give the employees a contract. Reba
Cook’s credited testimony was that Gallman asked her
how the contract negotiations were progressing and she
responded by indicating that they were not going very
well and wanted to know Gallman’s ‘‘honest opinion.’’
Gallman responded: ‘‘This company will never give
you a contract.’’ He repeated this assertion and denied
he was ‘‘kidding’’ in response to Evelyn King’s in-
quiry. King’s credited testimony corroborated Cook’s.
DeFalco stated that strikers remained on the pref-
erential hiring list only for the year of the contract and
that even though he could produce more at the plant,
he would consider only a few strikers for recall when
that year had run. He also stated that a unionized plant
in the Respondent’s organization had lost jobs and
would not get a new contract, and that the presence of
the Union at the Calhoun plant precluded the employ-
ees from receiving the pay raises being given at other
plants. As to this last assertion, Nancy Cochran’s cred-
ited testimony was that DeFalco said: ‘‘all other plants
was getting a raise, but he couldn’t give us a raise
even if his boss told him to because we had a third
party.’’ On cross-examination, Cochran responded
‘‘yes’’ to the question: ‘‘Didn’t [DeFalco] say that the
reason he couldn’t give you [a raise] was because of
the Union contract and that controlled wages.’’
The Respondent disingenuously asserts in its excep-
tions that Andrews manifested concern in his remarks,
Gallman honesty in his, and DeFalco vagueness in his
remarks about the strikers and the unionized plant, and
accuracy in his remarks about the pay raise. We, how-
ever, agree with the judge’s findings of coercive con-
duct. Andrews’ statement that management was trying
to fire a union activist and DeFalco’s statement that
strikers would not be recalled despite the availability
of work warned employees that the same unwanted
fate of job loss awaited them if they exercised statu-
tory rights.6 Gallman’s statement that the Respondent
would never sign a contract admonished employees
that they exercised Section 7 rights in vain, since a
collective-bargaining agreement would never be ob-
tained. Cook’s request for an honest opinion did not
negate the inherent coerciveness in Gallman’s re-
marks.7 DeFalco’s statement that unionized plants lost
jobs and did not renew contracts forewarned employ-
ees that their jobs were endangered by a futile exercise
of statutory rights.8 And DeFalco’s statement that the
Union’s presence meant employees must forgo pay
raises in effect at the Respondent’s other plants indi-
cated that the Respondent would do more for employ-
ees if they were unrepresented. We are not persuaded
that Cochran’s response to a leading question changed
the clear implication of her credited testimony.9
DeFalco went beyond merely comparing benefits avail-
able to unrepresented and represented employees.
DeFalco made an implied promise of benefits condi-
tioned on rejection of the Union.10 Accordingly, we
adopt the judge’s findings of 8(a)(1) violations in these
remarks.
C. The Unilateral Implementation of Contract
Proposals in the Absence of Impasse
The judge found that the Respondent violated Sec-
tion 8(a)(5) of the Act when it unilaterally imple-
mented wage and benefit increases on January 15,
1986, in the absence of a lawful impasse in negotia-
tions. He also found that this conduct violated Section
8(a)(3) of the Act as a component of the Respondent’s
unlawful plan to rid itself of the Union.
The Respondent excepted to these findings. We find
no merit to the Respondent’s contentions with respect
to the Section 8(a)(5) violation. The judge correctly
found that the credited testimony of the Union’s chief
negotiator, Richard Barnes, showed that the parties had
not taken unmovable positions on the issues which di-
vided them—wages, procedures for processing griev-
ances, and paying union dues—during the bargaining
which occurred on the night of January 14. By that
time, however, the Union had authorized a strike to
commence on January 15 because the parties had been
negotiating since May without reaching agreement.
The January 14 negotiating session commenced with
the Respondent, through its chief negotiator, Jim
Miles, presenting the Union with a complete contract
proposal which continued to adhere to its ‘‘peer re-
view’’ plan in lieu of a traditional grievance and arbi-
tration procedure which the Union sought. This pro-
posal had no language on either duration of the con-
tract or the newly offered checkoff procedure provid-
ing for direct bank deposit of union dues. The Union
spent 3 to 4 hours examining this proposal for changes
and new items and sent requests for clarification
through the mediator. The Union formulated a counter-
1336 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Barnes testified:
I told Mr. Miles that we could make changes in our economics,
our wages, but I needed to know what the length of contract
was. That I had movement. But I wanted to know if this five
and three-quarter percent was for a one-year agreement. Was it
five and three-quarter percent for three years? Or was it five and
three-quarter percent each year of a three year agreement? . . .
we didn’t know, and he would never tell us that.
proposal and, as midnight approached, told the medi-
ator to notify the Respondent that its counterproposal
would be ready shortly. The mediator returned with the
message that the Respondent’s negotiator was leaving
due to exhaustion. Barnes urged the mediator to coun-
sel the Respondent to examine the Union’s counter-
proposal because of the imminent strike. Miles replied
that he was too tired to continue. Barnes then sought
further clarification of the Respondent’s new checkoff
procedure because the Union did not understand it, and
wanted it reduced to writing as Miles had promised.
Barnes asked for the duration that the Respondent was
proposing for the contract because without this infor-
mation the economic aspects of the contract could not
be resolved. Miles said that he was prepared to nego-
tiate 1, 2, or 3 years, but would not make a proposal.11
Barnes then gave Miles the Union’s counterproposal,
but Miles again said he was too tired to continue and
would take a look at it and return to negotiations.
Barnes said that the Union was prepared to stay all
night because of the impending strike, but Miles re-
peated that he was too tired. Barnes suggested the par-
ties meet on January 16 and 17, but Miles asked to
wait until the next week. Miles said that he felt the
parties had reached impasse. Barnes countered that he
disagreed because the Respondent had given the Union
a new proposal at the outset of the meeting and had
neither fully responded to the Union’s requests for
clarification nor fully reviewed the Union’s counter-
proposal. Miles replied that he was too tired to discuss
anything further that night and left.
The Union’s proposal of January 14 included many
modifications: the elimination of work rules; conces-
sions on some aspects of management rights and on
the dental coverage in the group insurance; agreement
with the Respondent to substitute classification senior-
ity for labor grade seniority; proposals tracking more
closely the Respondent’s proposals on shift preference,
seniority, leaves of absence, funeral leave, health and
safety, shift premium, and call-in requirements; and a
proposal to split the difference on the period to define
temporary assignments. There was also a substantial
change in the Union’s position on grievance and arbi-
tration. In response to the Respondent’s proposal to re-
move the Union from the grievance procedure, the
Union proposed an appointed employee grievance
committee that would settle grievances on behalf of the
Union. Union involvement would be limited to later
stages in the absence of a settlement.
The judge correctly found no merit to the Respond-
ent’s contention that the parties were deadlocked on
the issues of arbitration, checkoff, and wages. The
Union had proposed eliminating its participation in the
early stages of the grievance procedure. The Respond-
ent’s own notes for the January 14 negotiating session
confirmed that Barnes was still seeking clarification of
the Respondent’s new, unwritten checkoff proposal at
the end of the January 14 meeting. Further, the failure
of the Respondent to settle the duration of the contract
it proposed precluded any final resolution of the con-
tract’s economic package. In this posture, we find, as
did the judge, that the record fails to establish that on
January 15, when the Respondent declared impasse on
these issues, further good-faith bargaining would have
been futile. See Hotel Roanoke, 293 NLRB 182, 182–
184 (1989); Sacramento Union, 291 NLRB 552, 556–
557 (1988). We accordingly adopt the judge’s finding
that the Respondent violated Section 8(a)(5) of the Act
by changing the terms and conditions of employment
at the plant on January 15, 1986, in the absence of a
lawful impasse.
The judge also found that the unilateral changes, in
the absence of a lawful impasse, violated Section
8(a)(3) of the Act. He noted the Respondent’s conduct
during the negotiations. At the outset the parties agreed
to negotiate the ‘‘language’’ of the contract before the
‘‘economic’’ package. At the October 7, 1985 negoti-
ating session, Miles told union negotiator Howard
Henson that the Respondent wanted to give employees
a 5-percent wage increase immediately. When Henson
rejected this offer because of the numerous ‘‘lan-
guage’’ issues left unresolved between the parties and
noted their priority over ‘‘economic’’ issues pursuant
to the parties’ agreement on the conduct of negotia-
tions, Miles offered 5-1/2 percent if Henson would
agree. Henson declined. The next day, the Respondent
posted a notice to all bargaining unit employees indi-
cating that the employees would have received the pay
raise and certain other improved benefits effective the
previous day, had the Union agreed. At the December
10, 1985 negotiating session, Barnes asked Miles
whether the Union would have to strike to get a con-
tract. Miles claimed that the Respondent had a history
of making concessions after the commencement of a
strike. Finally, on the night of January 14, the Re-
spondent precipitously declared an ‘‘impasse’’ in nego-
tiations and immediately increased wages and benefits
on January 15 as it hired strike replacements.
The judge found the Henson incident to be manipu-
lative conduct and gamesmanship designed to under-
mine the Union, and the December 10 incident to be
an inducement for the Union to strike. He found all the
cited events to be part of the Respondent’s predeter-
mined scheme to rid itself of the Union.
1337OUTBOARD MARINE CORP.
12 See Hotel Roanoke, supra, 293 NLRB at 184–185.
13 See Venture Packaging, 294 NLRB 544, 550–556 (1989).
14 Member Devaney disagrees that the Respondent violated Sec.
8(a)(5) and (1) by refusing to bargain with the Union concerning the
Union’s participation in the training of employees for the peer re-
view appeals panel. Although the Respondent told the Union at a
bargaining session in November that the parties might be able to
work out language accommodating the Union’s desire to participate,
it was clear that the parties understood that the Respondent’s pro-
posal contemplated that the Respondent alone would train employ-
ees. Other proposals regarding grievance resolution were exchanged
before the Respondent included its peer review proposal in its final
offer. In agreeing to the final offer, the Union did not propose lan-
guage providing for its participation in training or attempt in any
other way to ‘‘work out’’ the issue of training. Thus, Member
Devaney would find that the Respondent succeeded in securing the
Union’s agreement to language giving the Respondent the right to
train the employees, and that the parties’ zipper clause relieved the
Respondent of the obligation to bargain further regarding an issue
settled in the contract. In Member Devaney’s view, the Union’s fail-
ure to make a proposal with respect to the training during negotia-
tions should not enable it to reopen the issue after the contract has
been signed. See his dissent in Michigan Bell Telephone Co., 306
NLRB 281 (1992); Cf. TCI of New York, 301 NLRB 822 (1991).
15 The zipper clause states:
It is agreed by and between the parties hereto that the following
shall constitute and be the entire agreement between the parties
hereto in respect to rates of pay, hours of work and other condi-
tions of employment for and during the term of this agreement,
and neither party shall be required to meet or negotiate with the
other during the term of its agreement on any bargaining issues
or subject, including grievances, except as herein may be spe-
cifically provided and all rights and obligations created or in-
curred under and by virtue of the provisions of this agreement
shall terminate with the termination of this agreement.
The Respondent excepts, arguing that the complaint
contains no allegation concerning an independent vio-
lation of Section 8(a)(5) because of manipulative con-
duct or gamesmanship. It contends that the Respondent
normally reviewed salaries in October and that there
had been no increase at the Calhoun plant since Octo-
ber 1984, that since the latter part of 1985 the Union
had been publicly declaring that a strike would be nec-
essary because of the Respondent’s alleged failure to
bargain in good faith, and that a lawful impasse oc-
curred on the night of January 14 and lawful unilateral
changes on January 15.
We note that the evidence cited by the judge, to-
gether with certain other aspects of the Respondent’s
unlawful conduct, may be indicative of the Respond-
ent’s overall bad-faith bargaining.12 However, the
complaint did not include this allegation. Further, con-
duct indicative of a statutory failure to bargain in good
faith does not establish discriminatory conduct, in vio-
lation of Section 8(a)(3). Unlike the judge, we are not
persuaded that the Respondent’s overall animus and
conduct prove a preconceived plan to rid the Calhoun
plant of the Union and that, therefore, the unlawful im-
passe was necessarily discriminatory. We find that in
the absence of specific evidence,13 the General Coun-
sel has failed to prove this aspect of the complaint and
we shall therefore dismiss it.
D. The Alleged Refusal to Bargain About Training
Employees for the Peer Review Appeals Panel
We adopt the judge’s finding that the Respondent
violated Section 8(a)(5) and (1) by refusing to bargain
with the Union about training employees for the peer
review appeals panel for the reasons cited by the
judge.14 We disagree with our dissenting colleague’s
conclusion that: (1) the parties understood that the Re-
spondent’s proposal contemplated that the Respondent
alone would train employees; (2) the Union waived its
right to participation by agreeing to the Respondent’s
proposal without raising the issue of participation in
training; and (3) the contract’s zipper clause15 there-
fore relieved the Respondent of the obligation to bar-
gain further regarding an issue settled in the contract.
The credited testimony reveals that the Respondent’s
peer review proposal was discussed at two negotiating
sessions during November 1985. At the latter of these
meetings, the Union’s chief negotiator, Richard Barnes,
made it clear to the Respondent’s chief negotiator, Jim
Miles, that the Union ‘‘would not entertain’’ the Re-
spondent’s proposal ‘‘without having some impact into
the program.’’ Further, in discussing the Union’s pro-
posal providing for joint training, Barnes confirmed
that the Respondent proposed training employees dur-
ing nonwork hours. Barnes therefore argued that he,
Barnes, might participate since the designated time
precluded his disruptive presence in the plant during
worktime. Although the Respondent rejected the
Union’s joint training proposal, Miles told Barnes that
Barnes’ participation in training ‘‘could be worked
out.’’
During subsequent negotiations, the Union adhered
to its original traditional grievance-arbitration proposal
and there was no discussion of peer review training.
The contract signed on January 21, 1986, contained the
Respondent’s peer review system but stated only that
an eligible employee must ‘‘be willing to complete a
training program in problem resolution in non-work
hours.’’ Shortly thereafter, on January 31, 1986,
Barnes wrote to Plant Manager John Florip requesting,
inter alia, the names of the employees who had volun-
teered for the program together with ‘‘a date you will
be able to meet with the union to develop a curriculum
for this training program.’’ Barnes noted the depend-
ency of employees’ contractual rights on the training
program, and urged Florip to meet on this matter ‘‘no
later than February 12, 1986.’’ Barnes wrote Florip
again on February 19, 1986, stating:
I again stress the importance of a meeting to de-
velop a training program for appeals panel mem-
bers. Employees cannot have grievances heard
until this is accomplished . . . contact me as soon
as possible to set this program up.
1338 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Michigan Bell Telephone Co., supra.
17 Compare the language of the zipper clause cited in Michigan
Bell, supra.
18 April 2, 1986; see sec. A, supra.
19 Reba Cook testified that Plant Manager John Florip told her that
the skills of the various positions at the plant were not interchange-
able.
The Respondent ignored the Union’s requests on this
matter.
As we recently noted,16 we will conclude that a
statutorily protected right has been waived only where
the applicable contract’s pertinent provisions as well as
its zipper clause clearly and unmistakably indicate such
a waiver. Here the contract merely establishes a train-
ing program for the peer review appeals panel; it is si-
lent about the details of the program. Further, the con-
tract’s zipper clause does not cover the Union’s pro-
posed training because there is no language indicative
of settlement of all demands and proposals made by ei-
ther party during negotiations.17 Thus the zipper clause
cannot be construed as a waiver of bargaining on joint
training. Moreover, the credited evidence shows that
the parties neither intended the pertinent provisions nor
the acceptance of the contract to operate as a waiver.
When the parties last discussed joint participation in
training for the peer review appeals panel, the Re-
spondent was told that the Union would not accede to
the Respondent’s proposal without the participation of
the Union in the training, and the Respondent assured
the Union that this ‘‘could be worked out.’’ Indeed,
the Union’s acceptance of the overall proposal in sign-
ing the contract was immediately followed by the
Union urging the Respondent to meet promptly about
training because the contractual rights of employees
were at stake. In these circumstances, we find that the
evidence establishes that there was no waiver and we
agree with the judge that the Respondent violated Sec-
tion 8(a)(5) and (1) of the Act by refusing to bargain
with the Union about training employees for the peer
review appeals panel.
E. The Unilateral Elimination of Bargaining
Unit Jobs
The judge found that the Respondent violated Sec-
tion 8(a)(5) of the Act by failing to negotiate with the
Union concerning the elimination of bargaining unit
jobs. We adopt this finding for the reasons stated by
the judge, who found that the elimination of jobs was
a mandatory subject as an effect of certain production
process changes. The Respondent’s exceptions are
without merit. However, we shall discuss the Respond-
ent’s procedural contentions because the judge failed
to do so.
On October 23, 1987, the Respondent, on the
record, raised an affirmative defense to the allegation
that it had failed to recall strikers in violation of the
Act. The Respondent claimed that changes in equip-
ment, methods, layouts, and work assignments elimi-
nated bargaining unit jobs which precluded returning
strikers to their former positions. The judge granted the
General Counsel’s motion to amend the complaint to
include the allegation that the Respondent violated
Section 8(a)(5) and (1) of the Act by unilaterally elimi-
nating bargaining unit jobs without notice to or con-
sultation with the Union since approximately October
25, 1985.
The earliest date alleged for this violation is within
6 months of the 8(a)(5) charge filed against the Re-
spondent in Case 10–CA–21658.18 The same section
of the Act is at issue, the amendment to the complaint
arose from the Respondent’s defense to other allega-
tions in the complaint, and the allegation of the Re-
spondent’s failure to meet its statutory bargaining obli-
gations (the charge) encompasses a similar failure de-
riving from the contract itself (this allegation). Further,
the Respondent had ample opportunity to respond to
the General Counsel’s cross-examination of its wit-
nesses in defending both the allegation concerning the
recall of strikers and the amended allegation con-
cerning the elimination of bargaining unit jobs. See
Redd-I, Inc., supra, 290 NLRB at 1117; Nebraska Bulk
Transport, 240 NLRB 135, 154–156 (1978), enfd. in
pertinent part 608 F.2d 311 (8th Cir. 1979). The Re-
spondent’s procedural contentions, therefore, lack
merit.
F. The Unilateral and Discriminatory Imposition
of a Labor Pool Policy
The judge found that the Respondent violated both
Section 8(a)(5) and Section 8(a)(3) of the Act by insti-
tuting a ‘‘labor pool’’ policy after the strike. The judge
cited Plant Manager Sam DeFalco’s 1987 memo con-
cerning the plant’s greater flexibility and DeFalco’s
testimony that he made changes at the plant without
notifying or bargaining with the Union. The judge also
cited employee testimony and records indicating that
employees were transferred more often after the strike
than before the strike. The judge then made the
conclusionary finding that the ‘‘labor pool’’ policy was
partly instituted to thwart the return of the strikers and
that the Respondent failed to refute its unlawful moti-
vation.
The Respondent excepts to both the 8(a)(5) and the
8(a)(3) finding. It maintains that labor grade 3 employ-
ees were interchangeable19 and had always been
‘‘labor pool’’ employees and cited a prestrike memo
(July 31, 1985) in which the term was so used. The
Respondent also cites the contract’s management-rights
clause which designated management control of tem-
porary transfers ‘‘between jobs, shifts and departments
in order to maintain efficient and/or economic oper-
ations.’’ It notes that the Union failed to file griev-
1339OUTBOARD MARINE CORP.
20 The Union’s bargaining representatives testified that the term
‘‘labor pool’’ was not used during the contract negotiations.
21 See Wabash Transformer Corp., 215 NLRB 546, 547 (1974);
Rust Craft Broadcasting of New York, 225 NLRB 327 (1976); UNC
Nuclear Industries, 268 NLRB 841, 847–848 (1984).
22 See sec. C, supra.
23 Employees were advised as follows:
TO ALL EMPLOYEES
August 19 through August 22, 1985
All employees are scheduled to work 10 hours starting Mon-
day, August 19 through Thursday, August 22.
First shift will operate from 7:00 a.m. till 5:30 p.m. Second
shift will operate from 3:30 p.m. till 2:30 a.m.
Those employees whose overtime schedule is different will be
notified by their immediate supervisor.
If you have any questions, please feel free to ask me or your
immediate supervisor.
March 21, 1986
TO ALL EMPLOYEES!
THANK YOU! Each of you have worked some long hours
and put forth a great effort these past several weeks. Your ef-
forts are greatly appreciated.
Many of you are new to this type of work. Nearly all of you
have learned new jobs in the past two months. Your enthusiasm
toward your jobs and your willingness to learn has been fan-
tastic. We are all learning more each day . . . and it is a good
feeling.
Now, with all of this effort, where are we? And what can you
expect?
Our objective, as previously explained, is to have 4100 motors
packed by the close of business on Thursday, March 27th . . .
1700 V-6, 1500 V-4, and 900 2 and 3 cylinder motors. This will
not get us up to schedule, but will cover our immediate sales
needs for this month. Product availability is extremely important
Continued
ances concerning any increase in the number of tem-
porary transfers after the strike. Finally, the Respond-
ent argues that any evidence of animus was rebutted
by a legitimate business reason, attaining the flexibility
needed for increased efficiency and productivity.
We find merit to these exceptions. Certainly em-
ployees testified that they moved more frequently after
the strike and the records confirm this conclusion—
3.38 moves per employee in 1985 and 5.74 in 1986.
Also, Plant Manager Sam DeFalco testified that one of
the changes he instituted at the Calhoun plant was to
train employees for different jobs rather than restricting
them to one specific job, and his ‘‘desk memo’’ to all
employees celebrating the end of fiscal 1987 empha-
sized this. It stated in pertinent part: ‘‘We are a more
flexible organization. Our lives are not dedicated to
one specific job . . . . Since all of our workers are
now trained in more than one job, our productivity has
soared.’’
However, the evidence also shows that movement
from one position to another on the plant floor was
also common before the strike. Indeed, during negotia-
tions in August, September, and October 1985, the
Union submitted a proposal for an ‘‘all purpose crew’’
which would be available to fill any position on the
plant floor on an ‘‘as needed’’ basis and would be paid
an extra 50 cents an hour. The union representatives
testified that this proposal was the Union’s response to
the Respondent’s concerns about absenteeism, and em-
ployee complaints generated when the Respondent
eliminated the second shift in May 1985 and used
many of the second shift employees as floaters.20
We find the evidence insufficient to show a change
in the practice of having employees available to fill a
variety of positions on the plant floor. Any departure
from the existing terms and conditions affecting em-
ployees in this regard was one of degree. Employees
themselves acknowledged that they had filled more
than one position on the plant floor both before and
after the strike. Union representatives demonstrated
concern about this issue by making a proposal for a
special floating crew during contract negotiations.
Thus, Sam DeFalco’s ‘‘change’’ was not a change in
job classifications or transfer policies but rather rep-
resented a greater emphasis on flexibility in an existing
system that already featured employee job shifts in the
interest of efficiency. It therefore falls within the range
of those shifts in form or degree that do not rise to the
level of a substantial and material change in terms and
conditions of employment.21 The preponderance of
evidence does not support finding the violation here.
We are also not persuaded that the Respondent vio-
lated Section 8(a)(3) of the Act in emphasizing greater
flexibility in job assignments at the Calhoun plant. The
judge cited no evidence to support his conclusionary
finding that the Respondent instituted this ‘‘change’’ to
preclude the return of strikers to jobs in the plant. The
judge’s determination apparently flowed from his erro-
neous finding that every aspect of the Respondent’s
conduct may be viewed as part of a preconceived plan
to rid the Calhoun plant of the Union. As indicated
above,22 we find that in the absence of specific evi-
dence, the General Counsel has failed to prove this as-
pect of the complaint and we shall therefore dismiss it.
G. The Unilateral and Discriminatory Change in
Overtime Policy
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by unilaterally altering its overtime
policy in January 1987, and that this unilateral change
also violated Section 8(a)(3) and (1) because it formed
a part of the Respondent’s unlawful efforts to prevent
the strikers from returning to work. We disagree and
find that the General Counsel has failed to show that
the Respondent altered a past practice.
The record shows that in 1985 and 1986 the Re-
spondent regularly scheduled overtime by posting the
schedule for the upcoming month and advising em-
ployees to take questions or problems to supervisors.23
1340 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
during this time of the year . . . and supplying a timely quality
product is our reason for being here.
So far, we have produced 1150 V-6, 1094 V-4, and 618 small
motors. This means that we must produce the balance today, to-
morrow (Saturday) and during four days next week so that we
can all enjoy a three day Holiday Weekend.
This past several days have been our best during the last two
months. Our production level has steadily increased and quality
continued to improve.
Our task, to achieve our goals, is to continue what we have
been doing, producing 230 outboards a day. This task is not im-
possible, but very achievable. The problem is that we can’t seem
to reach these levels, yet, with an 8 hour day. Accordingly our
work schedule will have to be as follows:
Friday—3/21/86 10 Hours (previously posted)
Saturday—3/22/86 8 Hours (previously posted)
Sunday—3/23/86 No Production
Monday—3/24/86 10 Hours
Tuesday—3/25/86 10 Hours
Wednesday—3/26/86 10 Hours
Thursday—3/27/86 10 Hours
I believe that we can achieve our goals with the above work
schedule. Our supplying facilities feel that they will be able to
give us the necessary components to support this schedule. We
all know how important these goals are.
With your continued efforts we will reach our goals and we
will all then be able to enjoy a long three day weekend for
Easter. Let us all plan to reach these goals so we can plan on
a long Holiday Weekend by resting this Sunday (3/23) and
being prepared to MAKE IT HAPPEN next week.
Thank you again.
24 January 26, 1987
TO ALL EMPLOYEES:
It is apparent that the original daily schedule for January is no
longer attainable. This is due to the lack of material in the early
part of January and the loss of two days production due to
weather conditions this past week both in Calhoun and Burns-
ville.
As a result, one of the following options had to be taken. We
could recall employees for the balance of January and reduce
employees on February 1st. We do not feel that this decision
would be practical nor in the best interest of our employees.
Therefore we have chosen the second option. We will spread the
January arrears (units which were scheduled for January but not
built) into February.
Based on this decision, we feel the following work schedule will
be a benefit to all employees and attainable for all of us at Cal-
houn.
January 26–31 — 9 hours per day
February — 9 hours per day/5 days per week working Saturdays
only if necessary.
25 Overtime was as follows:
OMC - CALHOUN
Percentage of Overtime for Jan. & Feb. 1987
- Shop Hours Only -
(Overtime Hours Divided by Total Hours Worked)
Plant Manager DeFalco testified that before 1986 man-
agement had relied too heavily on overtime because it
had not effectively scheduled work. His own philos-
ophy was to reduce dependence on overtime by careful
scheduling, but that some overtime, averaging less than
6 to 7 percent overtime hours per month, allowed the
Company flexibility to handle the exigencies of sup-
pliers and customers, limited stress on employees by
holding their schedules to a maximum of 9 straight
hours, no two consecutive Saturdays, and no work at
all on Sundays, and prevented the problems associated
with laying off employees and then recalling them for
short periods.
On January 26, 1987, 5 days after the contract ex-
pired, Manufacturing Manager Tetzlaff notified em-
ployees that the plant could not meet the January pro-
duction quota and that scheduling extra overtime was
preferable to recalling inactive employees only to lay
them off after a few days, a step ‘‘neither practical nor
in the best interest of our employees.’’ Thus, Tetzlaff
concluded, January’s arrearages would be spread into
February, with employees working 9-hour days and
Saturdays where necessary.24 As a result of this policy,
overtime ranged from 2 to 4 percent of total hours in
January, but from 9 to 20 percent of total hours in
February.25
Payroll Week
Ending Date
Overtime
Hours
Total Hours
Worked Percentage
1/4/87 — 0 —
1/11/87 254 6,417 3.96
1/18/87 174 6,238 2.79
1/25/87 72 4,213 1.71
2/1/87 1570 7,924 19.81
2/8/87 625 6,876 9.09
2/15/87 841 7,022 11.98
2/22/87 788 7,039 11.20
3/1/87 630 6,729 9.36
The General Counsel contends that the Respondent
changed its low overtime policy to keep from having
to recall strikers and in derogation of its obligation to
bargain. The Respondent contends that increasing over-
time to handle a backlog did not change its past prac-
tice: it had increased overtime while employees were
on layoff in the same manner in August and October
1985. The Respondent also notes that any vacancy cre-
ated by the January 26 notice would last only about 5
days, and thus would not constitute ‘‘substantially
equivalent employment’’ for strikers waiting for recall.
The judge found that the January and February in-
creases in overtime hours were ‘‘significant,’’ but
made no finding of fact that this increase differed from
the Respondent’s past handling of a heavy workload
that could not be handled without extraordinary means.
He merely concluded that the January and February
extra overtime was an unlawful unilateral change of an
unspecified past practice.
Significantly, the General Counsel’s argument is as
bereft of a factual predicate for a finding of an unlaw-
ful change in past practice as the judge’s. He does not
argue either that the Respondent’s basis for ordering
the increased overtime—the extra workload in January
and February—was nonexistent or that increasing over-
time hours to handle extra work—as opposed to recall-
ing laid off employees for brief periods—was a change
1341OUTBOARD MARINE CORP.
26 Compare National Gypsum Co., 293 NLRB 1138, 1146–1152
(1989) (overtime cutbacks).
27 The approximately 185 prestrike employee complement in-
creased to approximately 234 poststrike.
28 Approximately 125 employees left the Respondent’s employ-
ment between the end of the strike and the Respondent’s recall of
the strikers commencing in April 1987.
29 For most months of 1986 the employee complement was slight-
ly more than 150, declining from a high of 234 to a low of 163.
In April 1987, it was 157.
30 The Respondent operated the plant with a firm production
schedule generally for between 60 and 90 days with a complete year
forecast on a rolling 12 months. During 1986, the plant’s average
monthly percentage of plan achieved was 48.1 percent. The pre-
ceding year it had been 66.9 percent. Although the percentage im-
proved markedly in 1987 (138.9 percent), this number is misleading
because the Respondent decreased its ‘‘plan’’ by over 63 percent
from 1985 levels.
31 The record shows that, compared with the 1985 operating cost
per employee, the Respondent experienced a 45-percent increase in
1986 and a 37-percent increase in 1987.
in a past practice of recalling employees. Instead, the
General Counsel relies on the wording of the an-
nouncement of the schedule changes, arguing that by
conveying the message that it had considered and re-
jected the option of recalling strikers in favor of as-
signing overtime to currently working employees, the
Respondent had engaged in a divisive ‘‘‘blame the
Union’ tactic’’ calculated to trigger resentment of the
Union in employees who disliked the longer hours and
to foster the conviction that employees’ job security
and interests could ‘‘be furthered only by opposition to
the Union.’’
We agree that the notice needlessly conveyed this
coercive message. If the parties had litigated the word-
ing under Section 8(a)(1), we could sustain a finding
that the notice itself violated the Act. But regardless of
how the Respondent chose to present its handling of
the extra work in January and February, the issue
under Section 8(a)(5) is not why the Respondent used
overtime, but whether its practice differed from that on
previous relevant occasions. On the evidence presented
in the record, we cannot find that it did. Similarly, the
antiunion motivation revealed by the notice is insuffi-
cient to support a finding of an 8(a)(3) violation.26 In
this mixed-motive situation, we find that the General
Counsel has shown prima facie that union animus was
a factor in the decision to use overtime, but that the
Respondent has shown that it would have dealt with
the temporary upsurge in work by scheduling the over-
time even in the absence of the antiunion motive. Its
decision was in accord with past practice and avoided
recalling employees to work for only a few days.
Accordingly, unlike the judge, we find that the Re-
spondent did not violate Section 8(a)(5), (3), and (1)
when it issued the January 26, 1987 overtime an-
nouncement.
H. The Discriminatory Hire of Excess
Replacement Employees and Failure to Recall
the Strikers
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by (i) hiring excess
numbers of replacement workers in the few days coin-
ciding with the strike; and (ii) failing to recall strikers
after the cessation of the strike even when hiring addi-
tional workers would have made it possible to manu-
facture additional products for which the Respondent
had customers. We agree.
1. Factual findings
The strike commenced on Wednesday, January 15,
1986, and ended when the Union sent the Respondent
a mailgram the following Tuesday, January 21, accept-
ing the Respondent’s contract terms and making an un-
conditional offer on behalf of the striking employees to
return to work. During the brief period of the strike,
the Respondent increased its employee complement by
approximately 50 employees with a combination of
some employees recalled from layoff and many new
hires.27 On receipt of the Union’s mailgram, the Re-
spondent announced that it was no longer hiring. In-
deed, even though 125 employees departed in the suc-
ceeding 15 months, the Respondent recalled only 9 to
10 strikers and only contacted all those employees re-
maining on the preferential hiring list in the 5 months
after April 1987.28 During this time, the Respondent’s
employment levels steadily declined,29 the plant failed
to meet its planned production,30 and the actual oper-
ating cost per employee increased markedly.31 More-
over, the contract to which the Respondent and the
Union agreed when the strike ended, expired after only
1 year on January 21, 1987.
Industrial Relations Manager Robert Earlie testified
that he supervised hiring during the strike and required
new employees to sign forms as they accepted offers
of employment. The record shows that some of the
forms were undated; some were dated January 17, 18,
and 19. At least 10 were dated January 20.
Eunice Rayburn, who joined the strike, testified that
on January 14 she asked her supervisor, Howard
Gallman, to call her about hiring during the strike be-
cause she was concerned about her family. On Friday,
January 17, Gallman telephoned Rayburn and told her
that the Respondent had hired 50 extra people and had
increased wages and benefits. Rayburn pursued her in-
quiry about returning to work, and telephoned Em-
ployee Relations Manager John Stoy. Stoy’s secretary
told Rayburn to report to the plant at 7 a.m. on Mon-
day, January 20. On Monday, Rayburn, together with
Pat Watson, Shirley Gann, Gann’s son, and several
others who wanted to return to work, waited in the
plant’s conference room from 7 a.m. until shortly be-
1342 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
32 The Respondent alleges that Rayburn’s testimony is unsupported
by any of the other persons she identified. As the judge relied on
her testimony in making his findings, he impliedly credited it. How-
ever, we note that there is no contrary testimony. Shirley Gann did
not testify. Pat Watson testified but was not asked about the January
20, 1986 incident. Watson testified that she ‘‘sign[ed] off for the
preferential hiring list at the end of the strike.’’ Her form, like those
of many other strikers, is dated January 23, 1986. The Respondent’s
attempt to raise doubt about Rayburn’s testimony is without merit.
33 The judge referred to the testimony of Evelyn King in making
a specific credibility ruling. The record shows that Nancy Cochran,
Suzi Suggs and Gloria Boyd testified about DeFalco’s statements at
the ‘‘Luncheon with Sam’’ meetings. The judge inadvertently re-
ferred to Evelyn King rather than Nancy Cochran in making his spe-
cific ruling.
34 The Respondent’s unfair labor practices began with threats of
discharge to employees when the union organizing campaign first
began in 1984 and continued, after the Union won an election and
was certified, with threats that the plant might close because of the
Union and that a contract would never be negotiated. Even more rel-
evant to the Respondent’s pattern of hiring during and after the
strike are the Respondent’s numerous instances of unlawful conduct
directed at the strikers. Thus, the Respondent subjected returning
strikers Faye Parker, Jerry Holcomb, and James Bold to disparate
treatment in discharge or other discipline (see sec. J, below), induced
colleagues of returning strikers to harass them (see fn. 48, below,
discussing instructions to employee Connie Davis regarding returned
striker Reba Cook), and the Respondent disparately treated returning
strikers with respect to leadperson duties and pay. (With regard to
this latter action, we adopt the judge’s findings that the Respondent
unilaterally and discriminatorily eliminated leadperson duties and
pay.)
35 See Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982).
36 The record shows that the Respondent had 164 employees in
October 1986, 163 in November, 164 in December, 163 in January
1987, 162 in February, and 160 in March.
37 The record shows that the Respondent placed a similar team at
the Calhoun facility in November 1984. The preceding month the
total number of employees was 278. In November it was 280. In
fore noon. The Respondent then told these employees
that they had been replaced and were ‘‘on call.’’32
Nancy Cochran, who also joined the strike, testified
that in the September 1986 luncheon meeting with em-
ployees, discussed above, Plant Manager Sam DeFalco
said ‘‘he could sell all the V-8’s that he could get but
getting them built would mean up[p]ing production
and he couldn’t get the people right now.’’ As noted
above, when asked when he would rehire the striking
employees, DeFalco answered ‘‘after the preferential
hiring list in January was over . . . he would look at
a few but it would be a few.’’ He understood that
‘‘some people got caught up in the flow of things.’’
Suzi Suggs and Gloria Boyd testified that DeFalco
made similar statements in luncheon meetings in Au-
gust and October. On these occasions, DeFalco stated
that ‘‘he wanted to hire at least 150 to 200 people to
get out around 1200 motors, if he could’’ and that if
employees ‘‘would all just hang on until January, it
would be awfully cold for the ones on the street, and
awfully warm inside.’’ The judge specifically credited
or impliedly credited all of this testimony33 by relying
on it in making his findings.
2. Analysis
The foregoing evidence, particularly when viewed in
the context of other unlawful conduct directed against
union activity and the strikers in particular,34 persuades
us that, as urged by the General Counsel, protected
union activity was a motivating factor in both the Re-
spondent’s hiring of excess striker replacements and its
failure to recall strikers after large numbers of the re-
placements had departed. The Respondent hired large
numbers of replacements—many of them in the wan-
ing days of the strike when some strikers were inquir-
ing about returning—in order to defeat reinstatement
rights of strikers; and, because of Plant Manager
DeFalco’s mistaken belief that reinstatement rights
would vanish a year after the strike ended (i.e., the
‘‘preferential list’’ would be ‘‘over’’), the Respondent
stalled recalling strikers during months when the de-
partures of replacements created many vacancies and
production was at a low level. Further, in Plant Man-
ager DeFalco’s revelatory language, the Respondent
contemplated limiting its rehiring of former strikers to
those who merely ‘‘got caught up in the flow of
things.’’ The implication that the Respondent distin-
guished between those guilty of enthusiasm for the
strike and those who were tantamount to passive par-
ticipants (with possible mercy for the latter) is strong
support for the finding of animus in the Respondent’s
delay in rehiring strikers.
We also find, for the reasons stated below, that the
Respondent has not proven its defense of legitimate
and substantial business justification or shown that it
would have taken either of these hiring courses inde-
pendently of its animus towards its employees’ pro-
tected strike activity.35
With respect to the hiring of replacements in excess
of the numbers of employees on strike, the Respondent
contends that the hire of a substantial number of new
employees was necessitated by the upcoming busy sea-
son, the anticipation that there would be significant
turnover among the new hires, and the presence at the
plant of instructors on temporary assignment from their
regular positions elsewhere in the Respondent’s cor-
poration. The judge found these assertions pretextual.
We agree.
The Respondent presented no evidence that it sought
to hire a predetermined number of employees at the
outset of the strike; it declined to rehire experienced
employees who sought to return to work while it was
still hiring inexperienced replacements; it made no
similar increase in the number of employees in antici-
pation of the upcoming busy season in January 1987;36
it used teaching teams both before and after this occa-
sion without similar increases in the number of em-
ployees;37 and the instructors were at the plant for sev-
1343OUTBOARD MARINE CORP.
1987 a team of engineers from other plants ran the model change.
The Respondent provided total employee figures for the first 8
months of 1987 and there were no significant increases in any one
month. The lowest number was 156 in May, the highest number was
171 in August, the remaining months showed numbers in the high
150s or low 160s.
38 The record shows that only 3 members of the team left at the
end of January, 2 more left early in February, while 10 remained
for almost all of February and 6 did not leave until towards the mid-
dle of March, the last 3 leaving on March 14.
39 We have previously found that an employer’s preference for
strangers over tested and competent employees is sufficient basis for
inferring antiunion motivation. Laidlaw Corp., 171 NLRB 1366,
1369 fn. 14 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied
397 U.S. 920 (1970).
40 The Respondent asserts that it is privileged to hire more replace-
ments than it has strikers citing Kurz-Kasch, Inc., 286 NLRB 1343
(1987), remanded 865 F.2d 757 (6th Cir. 1989), and Atlantic Creo-
soting Co., 242 NLRB 192 (1979). The Respondent’s reliance on
these cases is misplaced. In Kurz-Kasch, the only issue with respect
to the hire of excess replacements was whether they constituted bona
fide replacements. 286 NLRB at 1360. In Atlantic Creosoting, the
General Counsel argued that the respondent was acting pursuant to
an unlawful plan to defeat the strikers’ right to immediate reinstate-
ment by hiring excess replacements. However, the judge found a
lack of substantial evidence in the record to support such a conten-
tion. 242 NLRB at 199. The Board adopted this finding by specifi-
cally noting ‘‘that Respondent, without unlawful motive, perma-
nently replaced approximately 62 striking employees with 80 labor-
ers’’ 242 NLRB at 193. By contrast, as explained above, we find
that the record considered as a whole clearly demonstrates the Re-
spondent’s unlawful motivation in hiring excess replacements during
the January 1986 strike.
41 According to Ron Jensen, who was manager of the Calhoun
plant before DeFalco, Calhoun was the Respondent’s primary pro-
ducer of V8 motors.
eral weeks.38 These facts, especially the Respondent’s
rejection of experienced employees while it was still
hiring inexperienced replacements,39 clearly belie the
Respondent’s assertions.
In sum, the evidence concerning the hiring of re-
placements and the context in which that hiring oc-
curred, establishes that the hiring policy was animated
by discriminatory purposes rather than the Respond-
ent’s asserted legitimate business reasons.40
We also find that the Respondent has failed in its
attempt to show legitimate business reasons for its fail-
ure during the period between January 20, 1986 (when
the strike ended) and April 1987, to recall more than
a few of the strikers despite the departure of a large
number of replacements.
As noted in the factual summary above, the plant
failed to meet the Respondent’s own production plan
for a substantial part of that time, production was low
throughout in comparison with prestrike levels, and the
operating costs per employee increased significantly.
The Respondent presents no specific refutations of
these figures. Indeed, it concedes that if ‘‘one looks
solely at motors produced, it might appear that produc-
tion declined between April 1986 and January 1987.’’
The Respondent’s defense essentially boils down to a
claim that, although it is engaged in the manufacture
and sale of outboard motors, it was, during the period
in question, interested only in product quality and indi-
vidual employee productivity and was virtually uncon-
cerned about how many motors were actually produced
or whether its production came close to the number of
motors for which it had ready customers. Hence, the
Respondent argues, it had no reason to hire more than
a few of the former strikers, and the judge’s conclu-
sions to the contrary simply reflect a misunderstanding
of its corporate goals.
We find the Respondent’s claims belied by testi-
mony of the Respondent’s own witnesses and the cred-
ited testimony concerning Plant Manager DeFalco’s
explanation to employees in September 1986 about his
hiring plans. We acknowledge that the Respondent was
concerned about product quality and had been rede-
signing its production processes to make employees
into more efficient producers. But the record evidence
does not show that, as a consequence of that redesign
and the concern with quality, the Respondent became
indifferent to the number of motors it produced, nor
does it show that the number of employees on the pay-
roll was totally unrelated to the number of motors it
could produce.
Thus, William Chapman, the Respondent’s presi-
dent, agreed that, in view of the substantial investment
in new equipment at the Calhoun plant, he hoped to
use that ‘‘capacity to its fullest.’’ Jim Hayes, the plant
engineer, testified that one of the important goals of
changes in the production process was ‘‘to increase
production,’’ i.e., to ‘‘produce a much larger number
of units.’’ To be sure, as Hayes testified, the improve-
ments made it possible to get the same amount of pro-
duction with fewer employees than needed in the past.
Those improvements do not, however, explain the fail-
ure to hire strikers in greater numbers, given the evi-
dence of the low production figures and Plant Manager
DeFalco’s admission to employee Nancy Cochran that
he could ‘‘sell all the V-8’s that he could get’’ but that
this would require ‘‘upping production and he couldn’t
get the people right now.’’41 The Respondent’s claims
are especially unpersuasive with regard to the failure
to hire during the winter of 1986–1987, because, as the
testimony of several of the Respondent’s witnesses in-
dicated, that season was when production for the Re-
spondent’s busiest sales period—February through
May—was needed.
Finally, we note that there is no evidence that the
unrecalled strikers would be less able than those in the
1986–1987 work force to fit into the new, more effi-
cient and quality-enhancing processes. As Plant Engi-
neer Hayes testified, the production process modifica-
tions ‘‘did not change what the operator had to do’’
but made it possible for an operator ‘‘to make more
1344 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 Bushnell’s Kitchens, 222 NLRB 110, 118 (1976).
43 Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99 (7th
Cir. 1969), cert. denied 397 U.S. 920 (1970).
engines’’ by having parts and tools more readily avail-
able to the operator.
In sum, in rejecting the Respondent’s proffered busi-
ness justification for the snail’s pace at which it re-
called the strikers, the judge did not exhibit a ‘‘total
disregard of plausible economic explanations,’’42 as
the Respondent contends. Rather he found, as we do,
that the Respondent’s explanations are undermined by
the evidence, including that furnished by its own wit-
nesses. We thus agree with the judge that the Respond-
ent has not rebutted the evidence indicating that its
purpose in delaying recalls of strikers was to destroy
employee support for the Union.
I. Allegations Concerning the Respondent’s
Failure to Recall Strikers to Substantially
Equivalent Positions
The judge found that the Respondent did not satisfy
its Laidlaw43 obligations and that it engaged in dis-
criminatory conduct against the strikers in violation of
Section 8(a)(3) and (1) of the Act. Among other
things, the judge found that the Respondent unlawfully
failed to offer substantially equivalent positions to
strikers by (1) recalling labor grade 4 strikers to labor
grade 3 jobs without notifying them of their rights to
labor grade 4 positions, and (2) recalling labor grade
3 strikers to particular labor grade 3 jobs that were dif-
ferent from those they had formerly held. For the rea-
sons stated below, we reject the Respondent’s excep-
tions concerning the labor grade 4 employees, but we
find merit in its exception to the judge’s finding that
all labor grade 3 jobs were not substantially equivalent
for the purpose of reinstatement offers.
1. Reinstatement offers to labor grade 4
employees
The record shows, and the judge found, that the Re-
spondent offered labor grade 4 strikers positions as
grade 3 assemblers, and posted and accepted bids on
grade 4 positions without either offering the positions
to grade 4 strikers or allowing them to bid on the posi-
tions. In its exceptions, the Respondent does not con-
tend that labor grade 3 positions are substantially
equivalent to labor grade 4 positions, nor does it deny
that it recalled labor grade 4 employees to labor grade
3 positions. It argues that its offer of labor grade 3 po-
sitions was without prejudice to the strikers’ rights to
grade 4 jobs and that they were retained on the recall
list whether or not they accepted or declined grade 3
positions. It also contends that when grade 4 jobs
opened up, the Respondent resorted first to the recall
list to fill them.
We find no merit to the Respondent’s exceptions be-
cause the record indicates (1) that these strikers were
not informed that the Respondent acknowledged their
rights to grade 4 positions and (2) that the Respondent
had posted grade 4 positions in the plant without noti-
fying unrecalled grade 4 strikers about them.
Mark Wesley testified that he received an August
15, 1986 offer as a grade 3 assembler despite his
prestrike position as a grade 4 motor tester. Wesley re-
turned and remained at the plant for approximately 12
months in grade 3 positions. The Respondent did not
indicate that he remained eligible for a grade 4 va-
cancy. About a week before Wesley’s departure for a
new job at Lockheed Aircraft, Employee Relations
Manager John Stoy told him he had been going
through his file and noted that Wesley had been a
grade 4 motor tester before the strike but Stoy did not
know what that meant. Similarly Michael Davis testi-
fied that Stoy called him about openings at the plant
in August 1986. Davis indicated that he would return,
and spent approximately 1 year in grade 3 positions
before being placed back in his prestrike job of grade
4 motor tester. At no time did Stoy say anything about
a grade 4 position.
Gloria Boyd testified that Stoy called her in July
1986 to return to work. No mention was made of her
prestrike grade 4 inspecting position; and it was not
until August 1987, the month when the consolidated
unfair labor practice complaint was issued in this case,
that Stoy told her that if a position similar to her
former grade 4 position became available, it would be
offered to her prior to any posting for bids.
Richard Hutchins stated that he received an April
20, 1987 written offer as a grade 3 assembler even
though he indicated on his January 23, 1986 form for
preferential hiring that he was only interested in return-
ing to his prestrike labor grade 4 position. The letter
stated: ‘‘If we don’t hear from you by five calendar
days from the date of receipt we will assume that you
are not interested in returning to OMC and our records
will reflect that you voluntarily resigned as of that
date.’’ Hutchins testified that the Respondent never in-
dicated that he was eligible for a grade 4 position.
The Respondent’s claim that it offered the former
grade 4 strikers any open grade 4 positions before of-
fering those positions to other employees without such
experience is belied by the testimony of Employee Re-
lations Manager John Stoy. He admitted that no labor
grade 4 bid was opened to employees on the pref-
erential hiring list during 1986 and the first 7 months
of 1987. For example, an April 23, 1986 bid for a
labor grade 4 repair person in ‘‘powerhead’’ and a
May 8, 1986, bid for a labor grade 4 painter in ‘‘lower
unit’’ were merely posted in the plant and employees
transferred from within the plant. The Respondent fol-
lowed this procedure for all the other bids occurring
1345OUTBOARD MARINE CORP.
44 See Oregon Steel Mills, 291 NLRB 185 fn. 1 (1988), enfd.
mem. 134 LRRM 2432 (9th Cir. 1989), cert. denied 110 S.Ct. 2617
(1990); H. & F. Binch Co., 188 NLRB 720, 725 (1971), modified
on other grounds 456 F.2d 357 (2d Cir. 1972); MCC Pacific Valves,
244 NLRB 931, 933–934 (1979), modified on other grounds mem.
665 F.2d 1053 (9th Cir. 1981).
during this time. First notification to employees on the
preferential hiring list occurred when the Respondent
mailed letters concerning an August 12, 1987 labor
grade 4 paint vacancy. Taken as a whole, the Respond-
ent’s treatment of the labor grade 4 strikers as to their
recalls failed to satisfy the statutory obligation to rein-
state strikers to substantially equivalent positions.44
2. Reinstatement offers to labor grade 3
employees
We disagree with the judge’s finding that the var-
ious different jobs in the labor grade 3 classifications
were not substantially equivalent for reinstatement pur-
poses. He gave insufficient weight to similarities
among those positions and, more significantly, he dis-
regarded the evidence of frequent transfers among
those positions prior to the strike (described in sec. F,
above, concerning the labor pool policy). The evidence
shows, as the Respondent contends in its exceptions,
that although variances in the jobs caused some em-
ployees to prefer one job over another, these were fun-
damentally equivalent low-skilled positions.
Both the General Counsel and the Respondent elic-
ited substantial testimony on the nature of the work
performed by employees in labor grade 3 positions.
They worked under uniform conditions with the same
benefits and pay (leadpersons received an extra 25
cents an hour). Plant Manager Sam DeFalco indicated
that almost all stations in the plant involved repetitive
manual work in cycles of approximately 5 minutes.
Employees often used simple air tools to attach parts
and at some stations were required to wash, grease, or
sand the motors. In the powerhead department, em-
ployees attached and adjusted parts (e.g., carburetors,
starters, electrical components) to the exterior portion
of the engine. In the lower unit department, they at-
tached the mid section to the gear case. In the hook-
up department, they attached the assembled powerhead
to the assembled lower unit. In the shine line depart-
ment, they washed the motors, adding decals, greasing
fittings, attaching an air silencer, and attaching the
motor hood. In the motor cover department, they at-
tached handlers, louvers, and decals to the motor
cover, inspected the motor cover and placed it in a
plastic bag. In the paint department, labor grade 3 em-
ployees wiped off parts and cleaned glue and grime
from the motors. In the pack department, employees
assembled the owner’s manual, small parts kit, and
boxes; employees constructed an H-frame of wood and
cardboard and a cardboard box for each motor and a
conveyor brought the boxes to the rollover stand where
employees bolted the motor into the H-frame and
packed it into the box; a hyster moved the packed
motor from the rollover stand to the reader rail, where
employees added the owner’s kit and sealed the boxes.
DeFalco testified that none of the plant’s positions
in labor grade 3 required specific skills. Rather, em-
ployees needed to become accustomed to the rhythm
of accomplishing the job; they learned to be com-
fortable with the sequence. Most employees could be-
come proficient at producing a quality product within
4 to 8 hours; employees usually attained the rhythm
which made the job easier for them within the same
period or an additional half day. Most employees (99.9
percent) were able to perform at the desired level of
75-percent standard within 1 to 3 days, according to
DeFalco.
The employees themselves brought no special skills
to the positions at the plant. Some had attended a 2-
day ‘‘quick start’’ program conducted by the local un-
employment office. This program offered a history of
the Company and taught parts identification and use of
air tools and screwdrivers. Employees had no technical
training or prior assembly experience. Some had no
high school diploma and had worked previously in un-
skilled food service jobs.
Even more significantly, as set out in section F,
above, even before the strike these jobs were treated
as relatively interchangeable in that employees were
not infrequently transferred among them. There was no
clear practice of keeping every employee immutably
fixed in a single given position.
The testimony of individual employees on which the
General Counsel relies indicates that employees had
clear preferences among the jobs, but does not rebut
the foregoing evidence. Thus, Evelyn King unfavor-
ably compared her poststrike shine line position, in
which she washed, torqued, and greased motors, with
her prestrike inspection position, because in the shine
line position she had to wear rubber shoes, gloves, and
apron and could no longer wear her best clothes, and
the work seemed ‘‘a lot harder.’’ Suzi Suggs testified
that she preferred her prestrike parts chasing job to her
poststrike reader rail position because the latter was
‘‘constant action all the time,’’ whereas with her
former job, ‘‘you could get caught up and still feel like
you were on easy street or taking it easy.’’ Nancy
Cochran testified about the undesirable features of var-
ious jobs: for example, the difficulty, in the hookup
station job, of inserting screws by air gun without
being hit by the motor; the ‘‘slippery . . . nasty’’
work of oiling cure cases in another position; the vul-
nerability to spattered paint sludge in the sanding oper-
ation; and the problem of itchy skin caused by han-
dling raw fiber glass in the process of building motor
covers. Some similar complaints were voiced by Reba
1346 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
45 Because we are relying in part on the evidence of prior, frequent
interjob transfers within labor grade 3, our holding here should not
be construed as precedent for finding that jobs with physically dif-
ferent requirements will always be regarded as substantially equiva-
lent if they are unskilled and compensated at the same level.
46 A number of the permanent replacements, when hired, had
signed slips acknowledging that they were permanently replacing an
employee with a particular clock number. The Union asked that
when such a replacement departed, the striker with that clock num-
ber be recalled. Because a given replacement was not necessarily
working in that striker’s former prestrike position when he or she
departed, however, the recalled striker’s former position would not
necessarily be open at that point.
47 We are mindful that our holding here may necessitate some
changes in the designated employees owed backpay by the Respond-
ent. We believe precision in this matter is best undertaken in the
compliance stage of this proceeding. See Viola Industries, 286
NLRB 306, 308 fn. 10 (1987).
48 Davis testified that on the Friday before the Monday of striker
and union activist Reba Cook’s return to the plant in April 1987,
she was approached by Production Manager Ronald Tetzlaff and told
that he wanted Davis ‘‘to take no bullshit’’ and ‘‘work her ass off,’’
with reference to Cook. Shortly after Cook’s return, employee Jerry
Holt loudly asked Cook whether ‘‘she’d painted any houses or laid
any tacks lately’’ in the hearing of many employees. Davis reported
this incident to her supervisor, Jim Gayheart, complaining about the
atmosphere of harassment. Thereafter Holt again harassed Cook
about her union support by placing at her workstation an enlarged
copy of the Respondent’s nonunion policy. Supervisor Todd Nich-
olas intervened in this incident and assured Davis, who continued to
express consternation about the harassment of the returned strikers,
that he would take care of it. Supervisor Greg Free also intervened,
advising Davis: ‘‘let me give you a warning. You need to be careful
. . . . There are some people upstairs that are thinking that you’re
being swayed by the Union.’’ Davis received similar advice from
Tetzlaff, who told her he had reason to believe she was ‘‘being
swayed towards the Union’’ and admonished her: ‘‘A word to the
wise. Let me give you a warning.’’ The judge’s finding that Davis
aligned herself with the strikers is based on this specifically credited
testimony. Thus we find without merit the Respondent’s assertion
that the evidence of the Respondent’s animus towards Davis was
minimal. We are also unpersuaded that the passage of approximately
2 months between the incidents recounted by Davis and Davis’ dis-
criminatory warning warrants a contrary conclusion.
49 The Respondent recalled these strikers in 1987—Parker on April
30, Holcomb on May 6, Densmore on May 17, and Bold on August
17.
50 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981); approved in NLRB v. Transportation Management Corp.,
462 U.S. 393 (1983).
Cook, who particularly disliked her poststrike job in
powerhead, because ‘‘you need to be fast with your
hands’’ to manipulate the air gun as the motors roll
down, and, as in the shine line and paint departments,
there was exposure to chemicals.
In contrast to Cook’s testimony about the undesir-
ability of the powerhead position, Phyllis McClure tes-
tified that she preferred her prestrike assembly job in
powerhead to her poststrike job at the de-gas station,
which she criticized because of exposure to cleaning
chemicals and gas fumes. Similarly Debbie Bowman
expressed a preference for her prestrike hook-up posi-
tion (comparing it unfavorably with her poststrike
shine line position, which she felt imposed ‘‘a whole
lot more pressure’’ and left her with wet arms despite
protective clothing); while Jack Holland wished to
leave his poststrike hook-up position for his prestrike
boxmaking job in the pack department, even though he
conceded that his old job ‘‘hurts your hands,
paralyze[s] your arms . . . and you never get used to
it.’’
In short, the evidence indicates that the jobs differed
in ways that caused employees to prefer one over an-
other (although the preferences were not all the same),
but that they were substantially equivalent in skill level
and compensation and had been treated as interchange-
able before the strike.45 Thus, when, in the course of
following the recall procedure requested by the
Union,46 the Respondent offered some of the employ-
ees labor grade 3 positions, as they became available,
that were different from the jobs the employees had
occupied before the strike, the Respondent satisfied its
Laidlaw obligation of offering them substantially
equivalent employment. We find, therefore, that the
Respondent committed no violation of the Act when it
offered labor grade 3 assembler positions to those
strikers who had held labor grade 3 positions prior to
the strike.47
J. The Named Discriminatees
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by issuing disciplinary
warnings to returned strikers Patty Densmore, Faye
Parker, Jerry Holcomb, and James Bold, and to Connie
Davis, who aligned herself with the returned strikers,48
and by discharging Bold.49 We agree. In concluding
that the General Counsel has established a prima facie
case of discrimination under Wright Line,50 we rely
specifically on the evidence that the penalties imposed
on these strikers and on the striker sympathizer con-
stituted disparate treatment when compared with the
Respondent’s prestrike policies. In each case, the dis-
cipline (and, in Bold’s case, the discharge) stemmed
from alleged poor performance in jobs with which the
employees were unfamiliar, and it was imposed after
the Respondent had refused the employees’ requests to
return to other jobs that they were capable of per-
forming up to standard. Although, as explained in sec-
tion I, above, the labor grade 3 jobs were substantially
equivalent and no employee had an inalienable right to
a particular position, testimony credited by the judge
establishes that, in the past, when employees had failed
to meet production standards, they had been moved to
other jobs to which they were better suited and they
were not disciplined for their failure.
The record shows that Davis was an experienced
employee who had always spoken openly with her su-
pervisors about her work assignments. On July 16,
1347OUTBOARD MARINE CORP.
1987, Supervisor Todd Nicholas reassigned the em-
ployees on the 2-cylinder rope and the 2-cylinder elec-
tric motor lines. Davis was moved from first position
rope to second position electric. This new position was
demanding and Davis protested about her assignment.
She failed to meet the required 75-percent standard
which was 10 motors per day on the first 2 days. Plant
Engineers Jim Hays and David Burns monitored Davis
on the second day at the end of which she was sum-
moned to the office. In the presence of Employee Re-
lations Manager John Stoy, Supervisor Nicholas issued
a written reprimand for poor performance. Davis had
never before been disciplined and she had received no
prior oral counseling about this incident.
Densmore was another experienced employee who
was a leadperson on the 2-cylinder line in powerhead
prior to the strike. The Respondent placed her on the
V8 line when she returned to the plant. She was re-
quired to build one of the large V8 motors by herself
every 70 minutes. Densmore encountered difficulties
immediately not only with the demands of the position
but also with obtaining parts. She repeatedly requested
to be returned to her former position but these requests
were denied. Plant Engineer David Burns made a time-
study of her movements and Supervisor Greg Free
made some effort to see that the parts chaser had com-
plete kits for Densmore. On July 16, 1987, Supervisor
Free issued Densmore a written warning for unaccept-
able job performance because she had been at the sta-
tion for 8 weeks and was only making 60 percent rath-
er than 75 percent of standard. The Respondent had
never before disciplined Densmore. Rather, the Re-
spondent had always praised her for her reliability and
ability to instruct others.
Prior to the strike, Parker was on the shine line
(washing, polishing, attaching decals to the motors)
and Holcomb was a grade 4 tester. When they returned
to the plant, the Respondent assigned them to the two
person, boxmaking position in the pack department.
No woman had worked in this position before Parker’s
assignment. The pair immediately experienced difficul-
ties in meeting the required 75 percent of standard and
notified Supervisor Brian Harrison of problems en-
countered with the materials and the configuration of
the workstation, and also asked to be moved to other
positions. Harrison and plant engineers attempted to
rectify some of these problems, but Parker and Hol-
comb continued to encounter difficulties in meeting the
standard. After approximately 2 weeks in the position,
the Respondent issued written warnings and about a
month later final written warnings for poor work per-
formance.
Bold held the boxmaking position in the pack de-
partment prior to the strike. The Respondent placed
him in powerhead working on subassembly making
carburetors and VROs on his return. Unlike the phys-
ical requirements of the boxmaking job, this position
required fine motor skills because of the manipulation
of small parts. Bold immediately encountered difficulty
in making standard. Plant Engineer Terry Stewart con-
ducted a timestudy. He found that Bold was having ‘‘a
lot of trouble in actually physically handling the parts.
Especially some of the smaller parts . . . just fumbling
with them.’’ After about 1 week, the Respondent
issued Bold a written warning for poor performance.
Plant Engineer David Burns conducted another time-
study. He also found that Bold was fumbling with the
straps and clamps. Two days after the first warning,
Bold received a second warning for unacceptable per-
formance and quality. Two days after that, the Re-
spondent terminated Bold. Bold had asked to return to
pack during this time, but the Respondent claimed
there were no vacancies.
Densmore testified that Supervisor Greg Free stated
that only one person, Tommy Smith, had ever met the
production standard on the V8 line. Davis testified that
employees usually had a week or two to get used to
a new position and when ‘‘they seen [sic] that you
couldn’t do it, then you was [sic] placed somewhere
else where you might be able to do it.’’ She herself
had worked the V8 line from the late fall of 1986 until
February 1987 and had never consistently made the
production goals of 9 or 12 motors daily, sometimes
falling as low as 1 or 2 and 3 or 4. Nevertheless, she
was never warned or criticized for failing to make pro-
duction. Similarly, when assigned to 2-cylinder rope
after the V8 line, Davis made only about 30 percent
of production on the first 2 days but was not criticized
or warned. Hurt testified that the 2-cylinder rope line
never made daily production until the beginning of Oc-
tober 1987. Then employees met the goal twice suc-
cessively, but afterwards failed. Operators on one par-
ticular station changed frequently because of failure to
meet standard, and one, Patsy Ledford, took at least a
month to meet standard. Although the Respondent
criticized these operators, it did not issue written warn-
ings and merely moved them to other work stations.
Similarly, prior to the strike, Marilyn Wilson was not
able to handle the 3-cylinder line and was moved to
subassemblies, and then to the shine line, without dis-
cipline. Strike replacement Terry Steele could not han-
dle a position on the 2-cylinder electric motor line and
was moved to subassemblies and then 3-cylinder motor
line, without discipline.
In sum, although Davis, Densmore, Parker, Hol-
comb, and Bold were not necessarily entitled to be
placed in their old prestrike positions when they were
recalled, the discipline imposed on them for the prob-
lems they encountered in their new positions rep-
resented a punitive policy that differed from that ap-
plied before the employees had exercised their Section
7 right to strike.
1348 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
51 See Storer Communications, 287 NLRB 890, 899–900 (1987);
Gilliam Candy Co., 282 NLRB 624, 629 (1987); Baddour, Inc., 281
NLRB 546, 563 (1986), enfd. mem. 848 F.2d 193 (6th Cir. 1988).
We do not reach the judge’s finding that strikers Richard Hutchins
and Jack Holland quit because the Respondent assigned them to
more arduous positions to which they were ill-suited on their return
to the plant. We note that Hutchins and Holland were named neither
in the complaint nor in the judge’s order. We also note that both
Jerry Holcomb and Richard Hutchins retain their Laidlaw rights to
grade 4 positions. These two employees worked in this classification
prior to their striking, but the Respondent offered them grade 3 as-
sembler positions when they returned to the plant. See sec. I,1,
above.
When they immediately encountered difficulties in
making standard in these positions, the Respondent
failed to follow its past practice of reassigning them to
positions to which they were better suited. Similarly,
after Davis openly sided with the returned strikers, she
too was placed in a new position and was subjected to
the same treatment. The Respondent pressured these
five employees to meet production standards and
issued disciplinary warnings and ultimately terminated
Bold.
The Respondent presented much evidence and ar-
gues at length in its brief that all of these employees
were disciplined for cause. However, this contention is
unresponsive to the Respondent’s burden to justify the
disparate treatment of Davis, Densmore, Parker, Hol-
comb, and Bold. Accordingly, like the judge, we find
that the Respondent violated Section 8(a)(3) and (1) of
the Act by issuing written warnings to the five named
employees and by discharging Bold.51
AMENDED REMEDY
The judge included in his order the affirmative re-
quirements that the Respondent treat the initial year of
the Union’s certification as beginning on the date of
compliance with his order, and, in addition to posting
the Board notice, mail copies of the order to all bar-
gaining unit employees and publish it in newspapers of
general circulation in the vicinity of the Calhoun plant.
The Respondent excepted to these requirements.
We find no merit to the Respondent’s exception to
extending the certification year. That is a standard
remedy where an employer’s unlawful conduct pre-
cludes appropriate bargaining with the union. See Mid-
South Bottling Co., 287 NLRB 1333, 1350 (1988),
enfd. 876 F.2d 458 (5th Cir. 1989); R & H Masonry
Supply, 238 NLRB 1044, 1050 (1978), modified 627
F.2d 1013 (9th Cir. 1980). We are mindful that the
parties in this proceeding engaged in bargaining and
consummated a contract. Nevertheless, the Respondent
engaged in multiple and continual violations of the Act
in a period extending from the Union’s organizing
campaign which commenced in late 1984 until after
the conclusion of the 1-year contract in January 1987.
During this extended time, the Respondent not only
violated the statutory rights of its employees directly,
with coercive and discriminatory conduct, but also un-
dermined the employees’ chosen representative with
multiple failures to meet its statutory requirement to
bargain in good faith with the Union. In these cir-
cumstances, we find appropriate the judge’s require-
ment that the Respondent treat the initial year of union
certification as beginning on the date of compliance
with our Order. See Glomac Plastics, 234 NLRB 1309
fn. 4 (1978), enfd. in pertinent part 592 F.2d 94 (2d
Cir. 1979).
On the other hand, we are not persuaded that the
Respondent’s conduct is so egregious as to warrant the
notice mailing and publishing requirement ordered by
the judge. Special notice remedies are designed to
meet special situations not present in this proceeding.
See Carbonex Coal Co., 262 NLRB 1306 (1982). We
find merit to the Respondent’s exception in this respect
and shall delete this requirement from the judge’s rec-
ommended Order.
ORDER
The National Labor Relations Board orders that the
Respondent, Outboard Marine Corporation, Calhoun,
Georgia, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Interrogating its employees concerning their
union sympathies and support of the Union or con-
cerning their intent to engage in concerted activities,
including but not limited to their engagement in a
strike or promising them benefits if they withdraw
their support from the Union.
(b) Threatening its employees with discharge, loss of
jobs, pay, or benefits, closure of its Calhoun facility,
the futility of their support for the Union as Respond-
ent would never sign or agree to a labor agreement,
threatening its employees with bad recommendations
or never working again in Gordon County, Georgia, if
they strike, with a refusal to recall or reinstate them
because of their support for the Union as there would
not be a union at the Calhoun plant, threatening them
with onerous working conditions or unspecified repris-
als because of their protected concerted activities.
(c) Refusing to bargain with the Union concerning
its initial contract and pretextually asserting an impasse
and implementing unilateral changes in wages and
benefits without bargaining those changes with the
Union.
(d) Refusing to bargain with the Union concerning
the training of employees for the peer review grievance
procedure and to furnish it with information con-
cerning this matter.
(e) Unilaterally eliminating leadpersons’ duties and
pay and inspectors and other positions without bargain-
ing these changes with the Union and discriminating
1349OUTBOARD MARINE CORP.
52 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.’’
against employees with respect to leadperson duties
and pay because of their engagement in a strike.
(f) Withdrawing recognition from the Union and
unilaterally implementing additional changes in wages
and benefits, engaging in direct dealing with its em-
ployees thereby bypassing the Union concerning the
attendance policy, unilaterally implementing changes in
the attendance policy, and inserting an antiunion clause
in its personnel manual and removing the union bul-
letin board and failing and refusing to abide by the
terms of its expired labor agreement with the Union,
until such time as an agreement is reached or a valid
impasse is reached.
(g) Hiring excess replacement employees and refus-
ing and delaying the reinstatement of its striking em-
ployees on their unconditional offer to return to work
and by failing to return the strikers to their former po-
sitions or to substantially equivalent positions as open-
ings occurred in those positions.
(h) Issuing written warnings to its employees be-
cause they engage in a strike or other protected con-
certed activities.
(i) Discharging an employee because he engaged in
a strike or other protected concerted activities.
(j) In any other manner interfering with, restraining,
or coercing its employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Recognize and, on request, meet and bargain
with Laborers’ Local Union No. 752 concerning wages
and other terms and conditions of employment of the
employees in the appropriate unit.
(b) Make the unit employees whole for any loss of
wages or benefits, with interest, they may have in-
curred as a result of the withdrawal of recognition
from the Union and refusal to bargain by the Respond-
ent and by reasons of all unilateral changes instituted
by the Respondent in their terms and conditions of em-
ployment, including but not limited to unilateral
changes in wages or benefits, the attendance policy,
the changes in leadpersons duties and pay, and the
elimination of bargaining unit jobs.
(c) Reinstate the existing terms of the expired labor
agreement until it has bargained in good faith with the
Union and has reached a new agreement or a valid im-
passe. Nothing herein shall require the Respondent to
rescind any increases or improvements in wages or
benefits or new benefits previously granted.
(d) Treat the initial year of union certification as be-
ginning on the date this Order is complied with.
(e) Offer each of the employees who went on strike
in January 1986 an opportunity to return to the em-
ployee’s former position or to a substantially equiva-
lent one, if the former position no longer exists.
(f) Rescind the discriminatory warnings issued to
employees Connie Davis, Patty Densmore, Faye
Parker, Jerry Holcomb, and James Bold, and expunge
any references to their discipline from its files and no-
tify them in writing of this.
(g) Rescind the discharge of James Bold, offer him
full reinstatement to his former position or to a sub-
stantially equivalent one if his former position no
longer exists, with full backpay and benefits with inter-
est, and restore his seniority and expunge any ref-
erence to his discharge from its files and notify him
in writing of this.
(h) Make whole the employees for all loss of wages
and benefits with interest and with full seniority for all
losses incurred by Respondent’s delay and refusal to
reinstate the strikers as found herein and by reason of
the other unfair labor practices found herein.
(i) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(j) Post copies of the attached notice marked ‘‘Ap-
pendix’’52 on its bulletin boards or designated places
where notices to employees are customarily posted at
its Calhoun plant. The notice shall be posted by Re-
spondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent
to ensure that the notices are not altered, defaced, or
covered by any other material.
(k) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
1350 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
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 interrogate employees concerning
their union sympathies and support of the Union or
concerning their intent to engage in concerted activi-
ties, including but not limited to their engagement in
a strike or promising them benefits if they withdraw
their support from the Union.
WE WILL NOT threaten employees with discharge,
loss of jobs, pay, or benefits, closure of our Calhoun
facility, the futility of their support for the Union be-
cause we would never sign or agree to a labor agree-
ment, threaten employees with bad recommendations
or that they will never work again in Gordon County,
Georgia, if they strike, with a refusal to recall or rein-
state them because of their support for the Union be-
cause there would not be a union at the Calhoun plant,
threaten them with onerous working conditions or un-
specified reprisals because of their protected concerted
activities.
WE WILL NOT refuse to bargain with the Union con-
cerning our initial contract and pretextually assert an
impasse and implement unilateral changes in wages
and benefits without bargaining those changes with the
Union.
WE WILL NOT refuse to bargain with the Union con-
cerning the training of employees for the peer review
grievance procedure and to furnish it with information
concerning this matter.
WE WILL NOT unilaterally eliminate leadpersons’ du-
ties and pay and inspectors and other positions without
bargaining these changes with the Union and discrimi-
nate against employees with respect to leadperson du-
ties and pay because of their engagement in a strike.
WE WILL NOT withdraw recognition from the Union
and unilaterally implement additional changes in wages
and benefits, engage in direct dealing with employees
thereby bypassing the Union concerning the attendance
policy, unilaterally implement changes in the attend-
ance policy, and insert an antiunion clause in our per-
sonnel manual and remove the union bulletin board
and fail and refuse to abide by the terms of our ex-
pired labor agreement with the Union, until such time
as an agreement is reached or a valid impasse is
reached.
WE WILL NOT hire excess replacement employees
and refuse and delay the reinstatement of striking em-
ployees on their unconditional offer to return to work
and fail to return the strikers to their former positions
or to substantially equivalent positions as openings oc-
curred in those positions.
WE WILL NOT issue written warnings to employees
because they engage in a strike or other protected con-
certed activities.
WE WILL NOT discharge an employee because he en-
gaged in a strike or other protected concerted activi-
ties.
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, meet and bar-
gain with Laborers’ Local Union No. 752 concerning
wages and other terms and conditions of employment
of the employees in the appropriate unit.
WE WILL make the unit employees whole for any
loss of wages or benefits, with interest, they may have
incurred as a result of the withdrawal of recognition
from the Union and our refusal to bargain and by rea-
sons of all unilateral changes instituted by us in the
terms and conditions of employment, including but not
limited to unilateral changes in wages or benefits, the
attendance policy, the changes in leadpersons duties
and pay, and the elimination of bargaining unit jobs.
WE WILL reinstate the existing terms of the expired
labor agreement until we have bargained in good faith
with the Union and have reached a new agreement or
a valid impasse. Nothing herein shall require us to re-
scind any increases or improvements in wages or bene-
fits or new benefits previously granted.
WE WILL treat the initial year of union certification
as beginning on the date the Board’s Order is complied
with.
WE WILL offer each of the employees who went on
strike in January 1986 an opportunity to return to their
former position or to a substantially equivalent one, if
the former position no longer exists.
WE WILL rescind the discriminatory warnings issued
to employees Connie Davis, Patty Densmore, Faye
Parker, Jerry Holcomb, and James Bold, and expunge
any references to their discipline from our files and no-
tify them in writing of this.
WE WILL rescind the discharge of James Bold, offer
him full reinstatement to his former position or to a
substantially equivalent one if his former position no
longer exists, with full backpay and benefits with inter-
est, and restore his seniority and expunge any ref-
erence to his discharge from our files and notify him
in writing of this.
WE WILL make whole the employees for all loss of
wages and benefits with interest and with full seniority
for all losses incurred because of our delay and refusal
1351OUTBOARD MARINE CORP.
1 All dates are from October 1984 until December 1987 unless oth-
erwise indicated.
2 The following includes a composite of the credited testimony of
the witnesses. To the extent that conflicting testimony is not recited
here it has not been credited.
to reinstate the strikers and by reason of the other un-
fair labor practices found.
OUTBOARD MARINE CORPORATION—
CALHOUN
Ellen K. Hampton and Leslie Unger, Esqs., for the General
Counsel.
John G. Creech, Charles P. Roberts III, and Michael W.
Bishop, Esq., of Greenville, South Carolina, and Dennis
McArdle, Esq., of Waukegan, Illinois, for the Respondent.
Howard Henson and David Crosslin, of Atlanta, Georgia, for
the Charging Party.
Connie Davis, of Adairsville, Georgia, for herself.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on 24 separate days between Sep-
tember 14 and December 10, 1987, at Calhoun, Georgia, pur-
suant to a consolidated complaint issued by the Regional Di-
rector for Region 10 of the National Labor Relations Board
(the Board) on August 28, 1987, and is based on charges
filed by Laborers’ Local Union No. 752 (the Union) and
charge filed by Connie Davis, an individual. Specifically, this
consolidated case is based on the following charges filed by
the Laborers Local Union No. 752 in Case 10–CA–21658 on
April 2, 1986, and amended on April 22, 1986; a charge
filed in Case 10–CA–22106 filed on October 22, 1986; a
charge in Case 10–CA–22293 filed on February 5, 1987; and
a charge in Case 10–CA–22643 filed on July 1, 1987, and
amended on August 3, 1987, all by Laborers’ Local Union
No. 752 and is also based on a charge filed in Case 10–CA–
22709 on July 27, 1987, by Connie Davis, an individual. An
order consolidating cases, a third amended complaint and no-
tice of hearing was issued by the Regional Director for Re-
gion 10 of the National Labor Relations Board on August 20,
1987, alleging violations of Section 8(a)(1), (3), and (5) of
the National Labor Relations Act. Subsequently, on August
28, 1987, the Regional Director set aside settlement agree-
ments in Case 10–CA–20636 in which complaint had been
filed on December 12, 1984, and in Case 10–CA–21564 filed
on February 26 and amended on March 11, 1986, by the La-
borers’ Local Union No. 752. A further order consolidating
cases, a fourth amended consolidated complaint and notice of
hearing was also issued on August 28, 1987, by the Regional
Director for Region 10. Subsequently, Case 10–CA–22827–
1, –2 was filed on September 2, 1987, by Laborers’ Local
Union No. 752 and, subsequently, further amendments of the
complaint alleging additional violations of the Act were per-
mitted at the hearing by me. Additionally, pursuant to my di-
rection, the General Counsel filed a written motion to amend
the complaint and attached Exhibit 1, setting forth the con-
solidated complaint as revised to reflect all the amendments
at the hearing including those contained in the motion. The
Respondent has by its answer as amended at the hearing de-
nied the commission of any violations of the Act. Further,
the Respondent has filed affirmative defenses alleging that
the earlier settlement agreements entered into between the
General Counsel and the Respondent were improperly set
aside and that the Regional Director’s setting aside of the
earlier settlements should be reversed by me and further that
the vast majority of the various 8(a)(1) allegations which
gave rise to the charges in the settlements are time barred
by Section 10(b) of the Act. On the entire record in this pro-
ceeding including my observation of the demeanor of the
witnesses who testified here, and after due consideration of
the positions of the parties and briefs filed by the General
Counsel and counsel for Respondent, I make the following
FINDINGS OF FACT AND ANALYSIS1
I. THE BUSINESS AND STATUS OF RESPONDENT2
The complaint alleges, the Respondent admits, and I find
that Respondent is and has been at all times material here
a Delaware corporation with an office and place of business
located at Calhoun, Georgia, where it engages in the manu-
facture of outboard motors and that during the past calendar,
which period is representative of all times material here, Re-
spondent sold and shipped from its Calhoun, Georgia facility
finished products valued in excess of $50,000 directly to cus-
tomers located outside the State of Georgia and that Re-
spondent is and has been at all times material an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II. THE LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that
the Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE APPROPRIATE UNIT
The complaint alleges, Respondent admits, and I find that
all production and maintenance employees employed by Re-
spondent at its factory at 100 Marine Drive, Calhoun, Geor-
gia, including all shipping and receiving employees and plant
clerical employees, but excluding all office clerical employ-
ees, salesmen, professional employees, guards, and super-
visors as defined in the Act constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On April 18, 1985, the Union was certified as the collec-
tive-bargaining representative for the employees in the
above-described unit. In the spring and summer of 1985, the
Respondent and the Union engaged in collective bargaining
for their first labor agreement. Bargaining continued until on
or about January 15, 1986, when the employees of Respond-
ent in the above-described unit concertedly ceased work and
engaged in a strike. During the period from January 15 to
22, 1986, the Respondent hired replacements for its employ-
ees. On or about January 23, 1986, the strike was terminated
and the striking employees unconditionally applied for rein-
1352 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Laidlaw Corp., 171 NLRB 1366 (1968).
statement. The complaint alleges that the Respondent has
since January 23, 1986, failed and refused to reinstate its em-
ployees to their positions vacated on the departure of a re-
placement employee or to positions becoming available in
the unit for which they are qualified. Thus the primary issues
in this case are concerned with the Respondent’s alleged fail-
ure to timely offer reinstatement to certain of its employees
in violation of their Laidlaw rights3 and allegations that the
Respondent intentionally delayed or refused to reinstate the
strikers in violation of Section 8(a)(3) and (1) of the Act and
various allegations of disparate treatment to strikers who did
return with respect to their placement and treatment accorded
them in various positions and with respect to the method uti-
lized in reinstating the strikers and with respect to more on-
erous conditions placed on the strikers and with respect to
various alleged threats and discriminatory treatment of the
strikers. In addition there are some individual alleged cases
of discriminatory discipline including one discharge.
In his letter of August 28, 1987, the Regional Director set
aside the settlement agreements in Case 10–CA–20636 filed
on December 12, 1984, and Case 10–CA–21564 filed on
February 26, 1986, and amended on March 11, 1986, by the
Union and thereafter Case 10–CA22827–1, –2 were filed on
September 2, 1987, by Laborers’ Local Union No. 752 and
based thereon and on evidence that developed during the
hearing further amendments of the complaint alleging addi-
tional violations of Section 8(a)(1), (3), (4), and (5) were
permitted at hearing.
It should be noted that the earlier cases set aside with re-
spect to presettlement conduct involved various allegations of
Section 8(a)(1) specifically, interrogation and threats issued
to the employees and unlawful promises of benefits with re-
spect to their support for the Union.
B. The Presettlement Conduct
In making my determinations in this case I initially con-
sidered the presettlement conduct which had been disposed
of by the agreements in Case 10–CA–20636 filed on Decem-
ber 12, 1984, and in Case 10–CA–21564 filed on February
26, 1986, entered into by the Respondent only for purposes
of background and to establish animus. I then considered the
complaint allegations of matters after the settlement on their
merits. I then considered the presettlement allegations on
their merits and made findings violations. I then found that
these postsettlement actions do support the Regional Direc-
tor’s actions in revoking the prior settlements entered into by
the General Counsel and the Respondent as the Respondent’s
unlawful campaign to frustrate its employees’ Section 7
rights to engage in concerted activities and select a collec-
tive-bargaining representative of their own choosing clearly
continued unabated as Respondent saw the need to obtain its
ends of ridding itself of the Union. I find that despite its
entry into two settlement agreements, the Respondent in its
determination to rid itself of the Union embarked on what-
ever course of action it deemed necessary without regard to
the Section 7 rights of its employees. Thus it continued to
engage in unlawful threats and promises of benefits. Whereas
its former plant manager, Florip, had threatened the employ-
ees with unspecified reprisals if they continued to geek union
representation and with job loss, its new plant manager,
DeFalco, also delayed the recall of strikers until April 1987
when the additional charges filed by the Union convinced
Respondent that its plan to delay the return of the strikers
was no longer viable. In its efforts to punish the strikers, it
returned them only grudgingly and treated them as new hires
who must prove themselves and met their frustrations with
such treatment with indifference and coercive discipline ig-
noring the realities of matching the returning strikers for jobs
which they were suited in the hope that they would become
frustrated and resign. With respect to its contractual commit-
ments, and established working conditions, it threw these to
the winds as it desired without notice to and in total dis-
regard for the Union as the collective-bargaining representa-
tive of the employees. It unlawfully withdrew recognition
from the Union despite the existence of extensive unfair
labor practices which were committed before and during the
period during which a decertification petition was circulated.
It has engaged in numerous unilateral changes in the terms
and conditions of employment of its employees in total dis-
regard of their collective-bargaining representative and their
rights under Section 7 of the Act. Moreover in view of the
overall pattern of unlawful activities engaged in by the Re-
spondent during the course of several years, I specifically re-
ject the Respondent’s contentions that the unfair labor prac-
tices underlying the earlier settlements were so remote in
time as to warrant their dismissal.
It is well settled that a Regional Director may revoke a
prior settlement of an unfair labor practice complaint or
charge and reinstate it in whole or part if an employer vio-
lates the terms of a settlement agreement. Here the Respond-
ent clearly violated the terms of the settlement agreements by
continuing its course of unlawful conduct to defeat the Union
and deny its employees’ union representation. Moreover, the
original charge may be reinstated notwithstanding the expira-
tion of the 10(b) period. Norris Concrete Materials, 282
NLRB 289 (1986). See also NLRB v. Northern California
District Council of Hod Carriers, 389 F.2d 721 (9th Cir.
1968); Medline Industries, 218 NLRB 1404, 1407 (1975),
wherein the Board recognized the practice of permitting evi-
dence of presettlement conduct to establish motive of a Re-
spondent’s postsettlement conduct as proper. The Board has
also given its approval to only a partial set aside of a settle-
ment agreement as a result of postsettlement conduct en-
gaged in by a respondent. In Davis Electrical Contractors,
291 NLRB 115, 135 at fn. 32 (1988), this question was spe-
cifically addressed by the administrative law judge who
found, with Board approval, that the set aside of only a por-
tion of the settlement was proper. See also Shurtenda Steaks,
161 NLRB 957 fn. 23 at 968 (1966). The setting aside of
only part of a settlement serves to protect against a respond-
ent’s benefiting from its noncompliance with terms of a set-
tlement it has entered into and also protects against the waste
of resources that would occur if the entire case underlying
the settlement, even those matters fully remedied by the set-
tlement agreement, were litigated.
I thus have concluded that the settlement agreements were
properly set aside by the Regional Director and that the
presettlement complaint allegations were not barred by Sec-
tion 10(b) of the Act.
1353OUTBOARD MARINE CORP.
C. The 8(a)(1) Allegations Prior to the
Representation Election
A representation election was held on April 10, 1985, at
which the bargaining unit employees selected the Union as
their collective-bargaining representative. The following al-
leged violations involve the period prior to the election and
the day of the election.
1. The comments of Supervisor Dick Andrews to
leadpersons Ty Bramlett and Molly Evans
Leadperson Ty Bramlett testified that toward the end of
November 1984 Supervisor Dick Andrews (an admitted su-
pervisor) told him that some members of ‘‘upper manage-
ment’’ suspected that employee Larry Mulkey was talking
about a union and they were watching Mulkey ‘‘particularly
close to see if they could get anything against his work
record.’’ Bramlett further testified that later in the same week
Supervisor Andrews told Bramlett and leadperson Molly
Evans that management was still watching Mulkey particu-
larly close because he ‘‘was talking the strongest about the
union to the other employees and that Larry needed to watch
his step because the management might find—look at ways
to terminate him.’’ Evans corroborated Bramlett’s testimony
and testified that Andrews had told them that Mulkey had
better watch his step because members of upper management
felt he was the ringleader of the union movement and wanted
‘‘to get rid of him.’’ Evans further testified that Andrews had
stated that Mulkey was a good employee and that he (An-
drews) would hate to lose his work.
Mulkey was discharged by Respondent and charges alleg-
ing his termination as unlawful were filed by the Union and
a complaint issued thereon in Case 10–CA–20636 which was
settled in May 1985. The General Counsel has not sought to
reopen the portion of the case dealing with Mulkey’s dis-
charge. Neither Bramlett nor Evans engaged in the strike of
January 1986 and were still employed by Respondent at the
time of the hearing. I credit their testimony which was
unrebutted as Andrews did not testify. The Respondent con-
tends that the comments by Andrews were made out of
friendly concern and no coercion has been shown as they
were made away from the plant in Bramlett’s car during a
break period.
I find that the comments by Andrews, an admitted super-
visor, were inherently coercive as threats of discharge against
Mulkey made to employees in the unit because of Mulkey’s
support of the Union and that Respondent thereby violated
Section 8(a)(1) of the Act.
2. The comments of Manufacturing Manager Ronald
Tetzlaff to employee Connie Davis
Connie Davis was employed in quality control during the
union campaign. She was an outspoken union opponent who
told other employees she did not think the Union could help
them as a result of her past experience in another State.
Davis testified she saw Manufacturing Manager Ronald
Tetzlaff (an admitted supervisor) almost daily as she worked
for him in quality control during this period. During their
conversations the Union was discussed and Tetzlaff asked
her how she thought the employees would vote at the up-
coming election and whether she thought the Union was
strong. Tetzlaff also said that the plant would close if the
employees chose union representation and that ‘‘OMC Cal-
houn will not be union.’’ Davis further testified that about
once a week until the election Tetzlaff would say that Re-
spondent would close its plant if the Union were selected by
the employees and that the employees would not have a job.
She further testified that about a month prior to the election
an employee asked what would happen if the Union came in
and Tetzlaff responded that the plant would close.
Tetzlaff testified that he only discussed the Union with
employees in response to their questions concerning what
would happen if the Union was selected by the employees
and that when asked by employees whether the plant would
close because of the Union, he told them:
[N]o that OMC has operated with unions and that the
plant would not close because of a Union coming in.
The only reason that OMC has closed a plant or moved
a plant, or moved any operation was because of the
economic situation. That would be the only reason.
Tetzlaff denied that he had told Davis that the plant would
close. He further testified that he had never told the employ-
ees that the plant would close if there were a strike but may
have responded to employees’ questions concerning the ef-
fects of a strike by informing them that the Respondent
would hire replacements.
I found Connie Davis to be a credible witness who testi-
fied in a forthright and straightforward manner and who did
not mince words but rather told things as they were in great
detail without any attempt to shade her testimony. Respond-
ent suggests in its brief that Davis’ perception may have
been altered by a warning she received in 1987 and that the
above events were over a year old at the time of her testi-
mony. I found, however, that she demonstrated explicit and
good recall of the events about which she testified and credit
her testimony. Conversely, I found Tetzlaff’s responses to
the questions propounded to him to be less than explicit. Al-
though Tetzlaff acknowledged that questions had come up
concerning the Union he was unable to identify specific top-
ics which had been discussed. As the General Counsel con-
tends in her brief, he also did not rebut the testimony of
Davis that he had said that ‘‘OMC Calhoun will not be
union.’’
Accordingly, I credit the testimony of Davis over that of
Tetzlaff and find that he threatened plant closure if the em-
ployees selected the Union. This threat was inherently coer-
cive and I find that Respondent violated Section 8(a)(1) of
the Act thereby.
3. The alleged threats by alleged Supervisor Grea Free
to employee Connie Davis
At the outset Free’s supervisory status during this period
between March and April 1985 is disputed as the complaint
alleges he was a supervisor and the Respondent contends he
was not a supervisor until May 1985. Free was employed as
a quality assurance analyst from October 1984 until May
1985 when he was promoted to receiving inspection super-
visor. Free testified that his duties as an hourly paid quality
assurance analyst were to inspect motors for quality and for
adherence to engineering standards. Free testified he had no
authority to hire or fire employees or to recommend such ac-
tions, nor to discipline or evaluate employees, grant raises,
1354 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
select employees for layoff, request them to work overtime,
or schedule vacations. Free was assigned throughout the
plant whereas the other quality assurance analysts were as-
signed to specific locations.
The General Counsel presented the testimony of Connie
Davis that shortly after January 1985 Manager Tetzlaff told
her she would be reporting to Greg Free and if she had ‘‘any
problems to go to Greg first.’’ Thereafter Free issued work
instructions and orders to Davis and other employees. Davis
testified that Free granted time off without checking and as-
signed overtime and gave employees their paychecks. On one
occasion Free ordered employee Faye Parker to leave her job
for an hour and a half to meet with Free and a man from
Respondent’s headquarters in Waukegan, Illinois, and both
attempted to persuade Parker to oppose the Union.
I find based on my analysis of the foregoing that Free was
a supervisor within the meaning of Section 2(11) of the Act.
Furthermore, he was placed in a position by Respondent’s
management during this period where he could reasonably be
viewed as a supervisor and his engagement in antiunion com-
ments as will be discussed infra reflected the antiunion atti-
tude of Respondent and are attributable to Respondent as its
agent. American Door Co., 181 NLRB 37 (1970); NLRB v.
Des Moines Food, 296 F.2d 285 (8th Cir. 1961); Clevenger
Logging, 220 NLRB 768 (1975).
Connie Davis testified that during this period she had fre-
quent contacts with Free prior to the election and that more
than once a week Free warned her about adverse con-
sequences if the Union won the election because she could
‘‘float around and talk to people’’ as a floor inspector. Free
asked her whether ‘‘the Union had a good strong hold in
there.’’ He also told her to let the employees know that if
a union came in, the plant would close. Davis testified that
on one occasion Free overheard her and other employees dis-
cussing the Union and said, ‘‘you better pray it don’t come
in . . . because this place is going to close.’’
Free denied that he had told the employees that the plant
would close if they chose union representation but rather tes-
tified that he had told employees that the plant was estab-
lished to make a profit and that if the Union came in, this
would hamper the plant’s ability to make a profit. Free also
testified he had no preference one way or the other con-
cerning the Union during the election campaign. As the Gen-
eral Counsel contends in her brief Free did not rebut Davis’
testimony that he had told her to get other employees know
that the plant would close if the Union won the election.
I credit the clear and detailed testimony of Davis over that
of Free which impressed me as devoted to walking a thin
line between denial of the alleged threats of plant closing and
acknowledging that there had been some discussion wherein
he had expressed concerns about the adverse impact of the
Union on the plant’s profitability. I accordingly find that Re-
spondent violated Section 8(a)(1) of the Act by the threats
of plant closing made by its agent Greg Free to its employ-
ees if they selected the Union as their bargaining representa-
tive.
4. The comments of Supervisor Mark Dunn to
employees Richard Hutchins, Ray Moore,
and Julius Sexton
Hutchins testified that about a month before the election
Supervisor Mark Dunn (an admitted supervisor) entered into
a discussion with Hutchins and employees Ray Moore and
Julius Sexton in the motor repair department and asked the
employees to give the new management a chance. Hutchins
related the benefits that the employees had received after
joining a union at a previous employer of his. Hutching testi-
fied that Dunn said the plant would be closed if the Union
were voted in. Hutchins further testified that employee Sex-
ton then contended that the plant could not legally be closed
and that Dunn replied, ‘‘they can if they show a loss.’’
Hutchins testimony was corroborated at the hearing by
Moore and Sexton. Moore testified that Dunn said, if the
Union won the election, ‘‘they would more than likely move
the plant.’’
Dunn testified and cast a different emphasis on this con-
versation. He conceded that the Union was a great topic of
interest but could recall no specifics. He also contended that
the Respondent did not have a position on the Union. He
also testified that when questioned by employees he told
them that the only way the plant would close would be if
it showed a loss.
I credit the testimony of Hutchins, Sexton, and Moore over
that of Dunn. I find that the primary emphasis of Dunn’s
comments were that the plant would close if the Union won
the election and that a way to do so legally would be to
show a loss. I accordingly find that Respondent violated Sec-
tion 8(a)(1) of the Act by the threats of plant closure made
by Supervisor Mark Dunn to its employees if they selected
union representation.
5. The alleged interrogation of employee Julius Sexton
by Supervisor Greg Free
Employee Julius Sexton testified that about the first of
April 1985, Greg Free asked him what he thought about the
Union and that he replied he was all for it. Free then told
Sexton that he opposed the Union and that the new manage-
ment was good and asked Sexton, ‘‘If you have the assur-
ance that you have a substantial increase in pay and benefits,
would you vote against the Union?’’
Sexton’s testimony was unrebutted and I credit it. I find
that the inquiry by Free as to what Sexton thought about the
Union coupled with the inquiry whether Sexton would vote
against the Union incorporated with a promise of benefit
constituted unlawful interrogation by Free and that Respond-
ent thereby violated Section 8(a)(1) of the Act. Rossmore
House, 269 NLRB 1176 (1984); Firmco, Inc., 282 NLRB
653 (1987).
6. The alleged threats of futility of the employees’
support for the Union issued by Plant Manager John
Florip on the day of the election
Employee Richard Hutchins testified that on election day,
Plant Manager John Florip approached him and referred to
a ‘‘yes’’ patch worn by Hutchins as he was going to vote.
Hutchins mentioned getting a contract and Florip replied, ‘‘I
believe you’ll be negotiating a contract this time next year.
Employee Faye Parker also testified that on election day
Florip approached her and noting a ‘‘vote yes’’ button she
was wearing said, ‘‘So you decided to go that way, huh?’’
When Parker responded in the affirmative Florip said,
‘‘Well, I want you to know we’ll still be negotiating a year
from now.’’
1355OUTBOARD MARINE CORP.
Florip testified that the subject of the potential length of
negotiations came up frequently. He denied having made the
comments attributed to him and indicated a lack of specific
recollection of these events. He testified that whenever he
was asked whether negotiations could take a month or a
year, he simply replied, that ‘‘it certainly could.’’
I credit the detailed recollection of Parker and Hutchins
whom I found to be credible witnesses. I find that Florip
made the comments attributed to him by Hutchins and
Parker. I find that Florip threatened these employees on or
about April 10, 1985, with the futility of their support of the
Union and that Respondent thereby violated Section 8(a)(1)
of the Act.
D. The Alleged 8(a)(1) Violations Occurring Between
the Election and the End of the Strike
1. The comments of alleged Supervisor Steve Fowler
to employee Susie Suggs Around November 1, 1985
In September 1985 Production Schedulers Steve Fowler
and Robin ‘‘Bo’’ Harris were transferred from Respondent’s
nonexempt payroll to its exempt payroll. At this time Re-
spondent transferred its parts chasers (material handlers) em-
ployees from the production to the materials departments and
from the immediate supervision of the production supervisors
to that of the production schedulers. Susie Suggs, a parts
chaser, testified that in September 1985 she was instructed
to report to Fowler rather than to Upper Motor Cover Super-
visor Betty Adcock as she had in the past and that she con-
tinued to report to Fowler until she went on strike in January
1986. Suggs testified that after the change she received her
work orders and instructions from Fowler and Adcock there-
after went through Fowler when she wanted Suggs to do
something and Fowler would give the order to Suygs. Fowler
assigned Suggs overtime. Although Fowler testified he did
not decide whether overtime was to be worked, he did decide
whether Suggs would be the employee to work overtime.
Fowler also exercised discretion with respect to time off and
vacation scheduling. He also signed two attendance warnings
issued to Suggs on the line for ‘‘General Supervisor’’ al-
though he contended they were prepared in personnel. Suggs
testified that the attendance problems were the result of prob-
lems she encountered as a single parent as the result of the
chronic illness of her daughter. Suggs testified that on the
first occasion Fowler told her that he was issuing the warn-
ing to let her know she had a problem and he would like
for her to improve her attendance. On the second occasion
he told her he was giving her a final warning. Fowler also
had the trappings of a supervisor as he had a desk next to
the production supervisor, dressed in more formal clothes
than the other employees, and handed out paychecks to the
employees.
Fowler is alleged in the complaint to have been a super-
visor and to have threatened the employees with the futility
of their support for the Union. Fowler answered in the nega-
tive to a series of generalized questions propounded by his
counsel as to whether he had the authority to hire, fire, pro-
mote, or recommend termination of employees, grant vaca-
tion time, or issue disciplinary warnings. He did not however
rebut the specific detailed testimony of Suggs as set out
above. The complaint alleges that he was a supervisor at the
time of the alleged violations. The Respondent contends he
was not. I find, however, on the basis of the specific testi-
mony of Suggs that Fowler was a supervisor of Respondent
within the meaning of Section 2(11) of the Act. Assuming
arguendo, that he was not a supervisor, I find that Respond-
ent placed him in a position wherein he would reasonably be
viewed as a supervisor by the other employees of Respond-
ent and that his comments as found infra are attributable to
Respondent as its agent. American Door Co., supra; NLRB
v. Des Moines Food, supra; Clevenger Logging, supra.
Suggs testified that around the first of November 1985,
Fowler said that ‘‘he felt sorry for us, that we would never
get a contract, and that if we went out on strike, that we
would never be back.’’ Fowler acknowledged having dis-
cussed with Suggs the possibility of a strike but denied that
he had told her that the employees would not get a contract
and contended that he had told Suggs he did not know what
would happen if the employees went on strike.
I credit the clear and straightforward testimony of Suggs
who impressed me as a sincere witness who told things as
they were with good recall and did not attempt to embellish
her testimony for partisan advantage. Conversely, as I recall
Fowler’s demeanor on the stand as noted by the General
Counsel in her brief, Fowler appeared uncomfortable and de-
fensive and his testimony was largely limited to terse denials.
Accordingly, I find that Fowler threatened employees with
the futility of their support for the Union and their engage-
ment in a strike and with the loss of their jobs if they went
on strike and that Respondent thereby violated Section
8(a)(1) of the Act.
2. The comments of Manager Ronald Tetzlaff to
employee Connie Davis in December 1985 about
a month before the strike
Davis testified that about a month before the strike, Man-
ager Tetzlaff was asked by an employee what would happen
if there were a strike and replied, ‘‘There may not be a
plant.’’ She testified also that an employee asked what would
happen if the employees did not cross the picket line and that
Tetzlaff replied, ‘‘You won’t have a job if there’s a plant
left.’’ Tetzlaff denied making these comments and testified
he only discussed the Union with the employees in answer
to their questions and that he responded to employees’ ques-
tions concerning whether the plant would close as a result of
the Union by telling them that Respondent has operated with
unions and would not close the plant as a result of the
Union’s presence and that the only reason for plant closure
or movement of operations would be economic.
As set out above I found Davis to be a credible witness
and I credit her testimony here also over that of Tetzlaff. I
accordingly find that Tetzlaff threatened plant closure and
loss of jobs if the employees engaged in a strike and that the
Respondent thereby violated Section 8(a)(1) of the Act.
3. The comments of Supervisor George Hutchinson to
employee Connie Davis after the election
Davis testified that a few weeks before the strike Super-
visor George Hutchinson asked her whether she thought the
employees would strike and that he then told her that the
plant would be closed if the employees struck and that he
further commented that the plant had a lot of space to be
converted into a warehouse. Hutchinson acknowledged that
1356 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
there had been a number of discussions concerning the possi-
bility of a strike from early November to January and that
employees asked him what would happen. He denied making
any comments other than he did not know whether there
would be a strike and that a strike was not necessary. Re-
spondent contends that there could have been no motivation
for Hutchinson to have made these comments to Davis be-
cause she was opposed to the Union.
I find, however, that Davis’ testimony should also be cred-
ited here over that of Hutchinson. As in the case of Free’s
comments to Davis it may be inferred that Hutchinson’s
comments were intended to be relayed by Davis to other em-
ployees. In any event I find that he made these comments
as testified to by Davis and I accordingly find that he threat-
ened plant closure and that Respondent thereby violated Sec-
tion 8(a)(1) of the Act.
4. The comments of Production Manager Terry Fulmer
to employee Glenda Sue Purvis
Purvis testified that after the election, Production Manager
Terry Fulmer joined her in the breakroom and asked whether
she thought the employees would go on strike and com-
mented about an allegedly violent strike that had occurred in
South Georgia and told her, ‘‘If we went out on strike at
OMC we would have trouble getting jobs in this area, or sur-
rounding areas.’’ Purvis then told him she needed her job
and Fulmer repeated twice that the employees would have
trouble getting jobs. Purvis’ testimony stands unrebutted as
Fulmer did not testify and I credit it. I accordingly find that
Fulmer threatened the employees with job loss if they en-
gaged in a strike and further find that he threatened them
with difficulty in obtaining jobs in the immediate and sur-
rounding areas as his comments regarding the difficulty of
finding jobs were not premised on economic considerations
but rather constituted overt threats that other employers
would not hire them as strikers or union supporters. I accord-
ingly find that Fulmer’s threats were unlawful and that Re-
spondent thereby violated Section 8(a)(1) of the Act.
5. The comments of Supervisor Howard Gallman to
employees Reba Cook and Evelyn King
Employees Reba Cook and Evelyn King testified that in
December 1985 Second-Line Supervisor Howard Gallman
told them that, ‘‘This company will never give you a con-
tract.’’ King then said, ‘‘You’ve got to be kidding,’’ Gallman
said he was not kidding and left. I credit the foregoing testi-
mony of Cook and King which stands unrebutted as Gallman
did not testify. I accordingly find that Gallman threatened
these employees with the futility of their support for the
Union and that Respondent thereby violated Section 8(a)(1)
of the Act.
6. The alleged promise of benefits by Production
Manager Terry Fulmer to Chief Union
Steward Ray Moore
Employee Ray Moore who served as Chief Union Steward
for the Union testified that on or about December 19, 1985,
he was approached by Production Manager Terry Fulmer
who brought up the subject of Moore’s previous employment
as a foreman with another employer. Fulmer put his hand on
Moore’s shoulder and said, ‘‘Well if you could help me get
rid of this Union . . . I’ll see that you get a good super-
visor’s position.’’ Moore declined the offer asserting his re-
sponsibilities to the other members of the Union and Fulmer
then inquired, ‘‘Why don’t you give this new management
a try? If you’d go in, we could get rid of this Union.’’ A
portion of Moore’s testimony was corroborated by employees
Faye Parker and Glenda Sue Purvis who were passing by at
the time and saw Fulmer’s hand on Moore’s shoulder and
heard Fulmer tell Moore that the two of them could get rid
of the Union.
The foregoing testimony is unrebutted as Fulmer did not
testify. I do not find that Moore’s testimony must be viewed
with suspicion solely because of his position as union stew-
ard and the effects of the strike and related events as con-
tended by Respondent in its brief. Moreover, as set out above
Moore’s testimony was corroborated in critical part by
Parker and Purvis and I credit it in its entirety. I accordingly
find that Fulmer promised the benefit of a good supervisory
position to Moore if he helped Fulmer get rid of the Union
and that Respondent thereby violated Section 8(a)(1) of the
Act.
7. The alleged threat by Plant Manager John Florip
to employee Jack Holland
Employee Jack Holland testified that in early November
1985, he received a letter from Respondent concerning a pos-
sible strike. Holland then sent a letter to Respondent wherein
he contended there would be no strike if a contract were ne-
gotiated. About 10 days after he sent the letter to Respond-
ent, Plant Manager Florip brought up the letter with Holland
and commended Holland for standing up for what he be-
lieved in but cautioned that ‘‘the reason that the Company
was down here to start with is because the labor up there
was so high.’’ Florip also told Holland that the employees
would not get a contract. Holland replied that if there were
no contract, ‘‘we walk.’’ According to Holland, Florip an-
grily said, ‘‘If you go on strike, you’ll never work in Gordon
County again,’’ and then left. Florip denied having made this
statement, acknowledged that he recalled Holland’s letter and
the conversation but offered no details as to what had oc-
curred in the conversation.
I credit Holland’s specific and detailed testimony over that
of Florip. I found Holland to be a credible witness who testi-
fied in a forthright manner. Although Florip’s manner at the
hearing was mild, I am convinced that he made the state-
ments attributed to him by Holland. I accordingly find that
Florip threatened the employees with futility concerning their
support of the Union by his comment that the employees
would not get a contract and that he also threatened the em-
ployees with the loss of their jobs and that they would not
work in Gordon County, Georgia, if they went on strike and
that by each of the foregoing comments by Florip, Respond-
ent thereby violated Section 8(a)(1) of the Act. Based on the
sequence of letters and Holland’s testimony at the hearing,
I find that this incident occurred in December 1985.
8. The comments by Production Manager Terry Fulmer
to employee Reba Cook in early January 1986
Employee Reba Cook, a member of the Union’s bar-
gaining committee, testified that in early January 1986, Pro-
duction Manager Terry Fulmer brought up the subject of the
1357OUTBOARD MARINE CORP.
Union during a work-related discussion and asked her how
negotiations were going. When Cook replied there was not
much progress, Fulmer asked that Respondent be given an-
other chance to which she replied, ‘‘Fool me once, shame on
you. Fool me twice, shame on me.’’ Fulmer then told her
people can change but Cook remained unconvinced and
Fulmer then said, ‘‘This Company’s not going to give you
a contract.’’
I credit the foregoing unrebutted testimony of Cook and
find that Respondent violated Section 8(a)(1) of the Act by
this threat of futility of the employees’ support of the Union.
I reject Respondent’s contention in its brief that the statement
was an opinion rather than a threat.
9. The comments of Supervisor Howard Gallman to
employee Eunice Darlene Rayburn approximately
a week before the strike
Employee Eunice Darlene Rayburn testified that approxi-
mately a week before the strike Supervisor Howard Gallman
asked her whether she was going on strike. When she replied
in the affirmative, he said, ‘‘You’ll lose your job, your bene-
fits.’’ She replied that she would get another job and he said
that the Respondent would give her a ‘‘bad recommenda-
tion.’’ As Gallman did not testify, the foregoing testimony of
Rayburn is unrebutted. I credit Rayburn’s testimony and find
that Respondent through these comments by its supervisor,
Howard Gallman, threatened Rayburn with the loss of her
job and benefits and with a bad recommendation to prospec-
tive employers and thereby violated Section 8(a)(1) of the
Act.
10. The comments of Supervisor George Hutchinson to
Employee Eunice Darlene Rayburn approximately
a week before the strike
Rayburn testified that her immediate supervisor, George
Hutchinson, asked her whether she was going on strike about
a week prior to the strike. When she replied that she was,
he told her she ‘‘would lose my job and my benefits.’’ He
also said, ‘‘We’re going to get the Union out of the State
of Georgia.’’ On the day prior to the strike Hutchinson again
asked her whether she was going out on strike and after she
replied in the affirmative, again told her she would lose her
job.
Although at the hearing Hutchinson denied having made
these statements, I credit Rayburn whom I found to be a sin-
cere truthful witness who testified with good specific recall
and did not seek to embellish her testimony.
I thus find that Respondent violated Section 8(a)(1) of the
Act by the foregoing threat of futility as the Respondent
would get the Union out of Georgia and the threats of job
loss and loss of benefits issued by its supervisor, George
Hutchinson.
11. The comments of Supervisor Howard Gallman to
employee Rayburn during a telephone conversation on
the Friday following the commencement of the strike
Rayburn testified that on the day prior to the strike, she
asked Supervisor Howard Gallman to call her if the Re-
spondent started to hire new employees as she was concerned
about her family and that Gallman called her on the Friday
after the commencement of the strike and told her that Re-
spondent had hired 50 new employees. Rayburn testified she
asked Gallman if she would get the same benefits as were
then being advertised. Respondent had unilaterally announced
increases in wages and benefits which were then being ad-
vertised in its search for applicants to replace the striking
employees following an alleged impasse in bargaining after
which Respondent had announced the increases. Gallman
told Rayburn she would get the same benefits as were being
advertised and probably would get more, about $8.
I credit the unrebutted testimony of Rayburn as set out
above. However, I find that Gallman’s comments to Rayburn
were merely ostensibly truthful responses to her questions
and were not violative of the Act as unlawful promises of
benefits. Even assuming that the increases were violative of
Section 8(a)(5) as unlawful unilateral acts, Gallman’s re-
sponses to Rayburn’s question at most amounted to technical
violations and did not rise to the level of an unfair labor
practice and I accordingly find that this allegation should be
dismissed.
12. The comments of Supervisor Hutchinson to
Rayburn during a telephone conversation on or
about January 19, 1986
Rayburn testified that she telephoned her immediate super-
visor, Hutchinson, following her conversation with Gallman
in order to discuss her return to work. She was initially un-
able to reach Hutchinson but he returned her call on the Sun-
day following the commencement of the strike. When she in-
quired about her return to work, Hutchinson told her he did
not think that ‘‘they wanted anyone there with a Union
card.’’ Hutchinson denied having made any threats. Hutch-
inson testified Rayburn asked if she still had a job and that
he told her he did not know but to speak to John Stoy, the
personnel manager the next day. I credit the specific testi-
mony of Rayburn as outlined above. I accordingly find that
Respondent violated Section 8(a)(1) of the Act by the com-
ment of its supervisor, Hutchinson, which I find was an un-
lawful threat of loss of her job issued to Rayburn.
13. The comments of Plant Manager John Florip at the
picket line on the third or fourth day of the strike
Chief Union Steward Ray Moore testified that on the third
or fourth day of the strike in January 1986, he and employee
Richard Hutchins were standing near fire barrels used to
keep warm during the cold winter weather and that Plant
Manager John Florip was driving through the entrance way
to the plant. Florip addressed Moore and commented that it
was cold and Moore agreed. At that point Florip said, ‘‘Well
its going to be a cold day in hell before you get a contract,’’
and then drove away. Moore’s testimony was corroborated
by employee Richard Hutchins and by International Rep-
resentative Richard Barnes who was then approaching the
picket line. At the hearing Florip denied having made these
comments and contended that this was not the type of thing
be would do. He also related a separate conversation on the
picket line with another employee.
I credit the testimony of Moore as corroborated by Hutch-
ins and Barnes which I find to be specific and believable, I
reject Respondent’s contention in its brief that the similarity
of testimony of Moore, Hutchins, and Barnes regarding these
1358 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The General Counsel’s unopposed motion to correct the tran-
script is granted.
comments by Florip renders their testimony incredible or
shows it to have been fabricated.
Although as noted above, Florip’s manner at the hearing
was mild, I find that he did make these statements as testi-
fied to by Moore, Hutchins, and Barnes and these statements
were consistent with earlier comments found to have been
made by Florip regarding the futility of the Union’s and em-
ployees’ efforts to reach an agreement with the Respondent.
I accordingly find that Respondent through Plant Manager
Florip threatened its employees with the futility of their sup-
port of the Union as they would not get an agreement and
that it thereby violated Section 8(a)(1) of the Act.
E. The 8(a)(1) Violations Alleged to Have Occurred
After the Strike
1. The comments of alleged Supervisor Bo Harris to
employee Evelyn King in February 1986
Employee Evelyn King testified that in February 1986
after the termination of the strike she spoke with Supervisor
Bo Harris at a local supermarket who told her not to count
on being recalled as the Respondent ‘‘had hired 50 extra em-
ployees to replace us.’’ King testified that Harris’ comments
were made in a sarcastic manner and when she inquired of
Harris as to how he knew this, Harris stated that he had been
told this by Plant Manager Florip. Harris acknowledged hav-
ing had a conversation with King in the supermarket but de-
nied having discussed the return of the strikers or the Re-
spondent.
As in the case of Production Scheduler Steve Fowler, Pro-
duction Scheduler Robin ‘‘Bo’’ Harris was transferred from
Respondent’s nonexempt to its exempt payroll in September
1985 and at this time the parts chasers (material handlers)
were transferred from the immediate supervision of the pro-
duction supervisors to the production schedulers. Subse-
quently Fowler as did Harris reported to Scheduling Super-
visor Ron Minnis and parts chasers reported to him. Al-
though Harris did not decide whether overtime would be
worked he had the authority to designate which employees
would work the overtime. He also prepared the employees’
daily schedule and answered questions and dealt with prob-
lems raised by the parts chasers. On at least one occasion he
also was involved with the discipline and discharge of an
employee from beginning to end and signed his termination
slip. Harris also had the trappings of a supervisor as he was
assigned an office and handed out paychecks. Under all these
circumstances, I find that Harris was a supervisor. Assuming
arguendo that he was not, I find that Respondent placed him
in a position wherein he was given agency status by manage-
ments’ placement in such a position whereby he was reason-
ably perceived by employees as having apparent authority as
its agent and that his acts are attributable to Respondent,
American Door Co., supra; NLRB v. Des Moines Food,
supra; and Clevenger Logging, supra.
I credit the specific testimony of King whom I find to be
a credible witness over the terse denials of Harris. I thus find
that Respondent violated Section 8(a)(1) of the Act by the
issuance of the threat of job loss by Supervisor Harris as set
out above.
2. The comments of Supervisor Todd Nicholas in
August and October 1986
Todd Nicholas is the son-in-law of Plant Manager Sam
DeFalco who had been appointed plant manager in the spring
of 1986. Following the strike Nicholas transferred to the Cal-
houn plant from the Respondent’s plant in Kentucky which
DeFalco had managed prior to his transfer to the Calhoun
plant. Employee Nancy Cochran, one of the few strikers who
had been recalled by the summer of 1986, testified that in
August 1986 Supervisor Nicholas responded in the affirma-
tive to a question by another employee as to whether a vote
was coming up in January (1987). At this time no decerti-
fication petition had been circulated. Cochran then stated that
the vote would be on a contract. The contract signed after
the strike was due to expire in January 1987. Nicholas then
said that the vote would be to determine whether the employ-
ees ‘‘wanted the Union or not.’’ Cochran stated she thought
it was hard to decertify4 the Union and Nicholas responded
that it was only necessary to get up a list of the employees
and put it to a vote. He further commented that he had taken
a survey when he had initially arrived at the plant and did
not think that the employees needed a union.
Cochran testified further that in October 1986 a decerti-
fication petition was circulated among Respondent’s employ-
ees and that Nicholas told her it had been presented to Plant
Manager DeFalco. Cochran commented that she guessed that
this made Nicholas a happy man to which Nicholas agreed.
Nicholas then asked her whether she had signed the petition.
After she responded in the negative, Nicholas said that Re-
spondent had the list and would know who had or had not
signed the petition. At this point he also told Cochran the
Union did not exist any longer.
Nicholas denied having made the foregoing comments and
contended at the hearing that he had not discussed the Union
with his father-in-law, Plant Manager DeFalco, or anyone
else prior to the presentation of the petition to DeFalco and
that he was unaware of the Respondent’s position regarding
the Union and would not have asked Cochran whether she
signed the petition as he believed that because she was a
striker, she would not do so.
I credit the testimony of Cochran which I found to be ex-
plicit and believable over the general denials of Nicholas.
Moreover, as contended by the General Counsel in its brief,
I find the testimony of Nicholas that he had never discussed
the Union with anyone, and his alleged lack of knowledge
concerning Respondent’s position on the Union in the light
of all that had transpired in 1986 with the advent of the
strike, the signing of the contract, the hire of a large contin-
gency of strike replacement employees, and the return of
some strikers to be inherently implausible.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by its interrogation of employee Cochran
in October 1986 by its supervisor, Todd Nicholas, as this
questioning constituted coercive interrogation coupled with
an implied threat that Respondent would know which em-
ployees had signed the decertification petition Rossmore
House, 269 NLRB 1174 (1984); Firmco, Inc., 282 NLRB
653 (1987).
1359OUTBOARD MARINE CORP.
3. The comments of Plant Manager Sam DeFalco
during a luncheon meeting held in September 1986
As will be discussed infra, most of the strikers had not
been called back until April 1987 or later. Ten strikers were
called back in the summer of 1986. Nancy Cochran, a striker
who had been returned in August 1986 testified concerning
a meeting held in September 1986 which was one of a series
of several ‘‘Luncheon with Sam’’ meetings wherein Plant
Manager Sam DeFalco met informally with various small
groups of employees and at which plant issues and employee
concerns were discussed. Cochran testified concerning one
such meeting in September 1986 which was the first meeting
with management which she had attended since her recall.
Cochran testified that at this meeting one of the employees
asked DeFalco when the preferential recall list would be over
and DeFalco replied, ‘‘in January.’’ It should be noted at this
point that the contract which had been signed shortly after
the termination of the strike was due to expire by its terms
in January 1987. DeFalco also stated in answer to another
employee’s question that none of the other plants was union
represented. At this point Cochran asked whether plants ‘‘up
north’’ were union represented and DeFalco replied that a
Johnson plant had 2000 employees but now was down to 600
employees and that its contract was coming up for renewal
and he did not think it would be signed. In response to a
question concerning whether the Calhoun plant was the only
assembly plant in the South, DeFalco said that the Respond-
ent had ‘‘opened one in January, that we knew why but he
couldn’t say.’’ Cochran testified further that DeFalco said he
could sell all the V8 motors he could get but this would re-
quire an increase in production and ‘‘he couldn’t get the peo-
ple right now.’’ Cochran remarked there were ‘‘still some
good strikers out of work.’’ DeFalco then told the employees
in response to a question as to when the strikers would be
rehired, that he couldn’t hire additional employees at the
present but that after the preferential recall list was over,
‘‘He would look at a few but it would be a few. That he
understood that some people got caught up in the flow of
things.’’ In addition during this meeting DeFalco also told
the employees that he was unable to give the employees a
wage increase ‘‘because we had a third party.’’ He also told
them he would be there with them each day rather than in
Waukegan (Illinois—the headquarters of Respondent) or in a
fancy office in Atlanta, Georgia (the Union’s office location).
DeFalco was called by Respondent to rebut this testimony
by Cochran among other matters. He freely acknowledged
the ‘‘Luncheon with Sam’’ meetings held in the fall of 1986
but contended that he had always stressed at these meetings
that Respondent would comply with the law and use the
preferential list in determining the recall of employees. He
further contended that he was aware of the permanent nature
of the preferential list. He further testified that when he ini-
tially arrived at the plant he was unaware of the process by
which unions can be decertified and was shocked when a de-
certification petition was presented to him but that he had
prior to that time learned that the Union could be decertified
after the expiration of the contract in January. He also denied
having had any discussions with anyone concerning decerti-
fication prior to his receipt of the petition for decertification.
In addition to DeFalco, Respondent called its employee re-
lations administrative assistant, Retha Moore, to testify con-
cerning the September ‘‘Luncheon with Sam’’ meeting and
employee Sandra Scott, a nonstriker who had attended sev-
eral ‘‘Luncheon with Sam’’ meetings prior to the September
meeting. Moore was questioned only concerning whether
DeFalco had said at this meeting that the preferential hiring
list would be over in January and testified that DeFalco had
not said this. Scott testified that at this meeting DeFalco told
the employees, ‘‘he could get all the work we needed and
that he could sell them,’’ referring to V8’s, V6’s and all the
motors. Scott also testified that DeFalco had discussed the
unionized Johnson plant and its reduction in force.
I find that testimony of Cochran concerning the above
comments by DeFalco at the ‘‘Luncheon with Sam’’ meeting
in September 1986 should be credited. I found her testimony
to be clear and explicit. I also note she is a current employee
and one of the earliest recalled by Respondent in August
1986 and I found her testimony to be a realistic account of
what occurred at the meeting whereas I found inconsistencies
in DeFalco’s testimony concerning his knowledge or lack
thereof of the decertification petition and how he moved
from a lack of knowledge to one of knowledge by the time
the petition was filed without ever having had any discus-
sions concerning the subject of decertification petitions with
anyone. I also find the single denial by Moore concerning
whether DeFalco had stated that the recall list would be over
in January is unconvincing in contrast to Cochran’s testi-
mony and in the light of employee Scott’s testimony that
there was mention of recalling strikers.
Accordingly, I find that Respondent violated Section
8(a)(1) of the Act by the threats issued by its plant manager,
DeFalco, at the September ‘‘Luncheon with Sam’’ meeting
by telling the employees that he could not hire employees at
the present although he could sell all the motors he could
build and that he would only look at a few strikers in Janu-
ary. These comments were threats that although he could sell
all the motors he could build, he would not hire any more
employees until the recall list was over in January and that
he would then only look at a few thus conveying to the em-
ployees that the remaining strikers would not be recalled be-
cause of their engagement in the strike. I find that it may be
inferred that DeFalco mistakenly believed that Respondent’s
obligation to recall strikers would end in January. I also find
that his comments concerning the reduction of the work force
at the unionized plant up North and that he did not think a
new contract would be signed with that plant were violative
of Section 8(a)(1) of the Act as they conveyed to the em-
ployees that their support of the Union would lead to loss
of their jobs and was futile as the Respondent would not sign
a contract with the Union. I also find comments by DeFalco
that other plants were getting raises but that the Calhoun em-
ployees would not get one because we had a ‘‘third party’’
were designed to promise benefits of increased wages if the
employees got rid of the Union. See Coast Engraving Co.,
282 NLRB 1236 (1987), and Brunswick Corp., 282 NLRB
794 (1987).
4. The comments of Plant Manager DeFalco at the
January 21, 1987 meeting
The Respondent received a decertification petition signed
by a majority of the unit employees on October 23 and 24,
1986, and shortly thereafter withdrew recognition from the
Union. As set out infra in this decision, I have found that
such withdrawal of recognition was violative of Section
1360 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8(a)(5) and (1) of the Act. On January 21, 1987, the date of
the expiration of the labor agreement signed by the Union
and the Respondent in January 1986, Plant Manager DeFalco
held a plantwide meeting. Employee Gloria Boyd testified
that he announced the expiration of the contract at this meet-
ing and proclaimed that the Calhoun plant was now a union-
free plant. He also stated that ‘‘it was going to stay that way
for as long as he was there and that he was going to be there
for a long time.’’ At this meeting he also announced raises
and increases in insurance benefits, announced increased pro-
duction and overtime, and had an employee remove the
union bulletin board. Boyd’s testimony was corroborated by
employees Susie Suggs, Nancy Cochran, and Blaine West
and was not denied by DeFalco.
Accordingly, I find that by his comments at this meeting
DeFalco threatened the employees that the plant would stay
union free and that it was futile to support the Union and
that Respondent thereby violated Section 8(a)(1) of the Act.
5. The comments of Manufacturing Manager Ronald
Tetzlaff to employee Connie Davis shortly before
the recall of employee Reba Cook
As will be discussed in more detail infra, Respondent did
not commence to recall substantial numbers of strikers until
late April 1987. Reba Cook was a member of the Union’s
negotiating committee and assumed the role of chief steward
for the Union on the resignation of Ray Moore from this po-
sition. Cook was recalled on April 27, 1987. Connie Davis
testified that about a week prior to the return of Cook, Man-
ufacturing Manager Ronald Tetzlaff approached her at her
work station and told Davis he was bringing a striker back
the following Monday and needed someone he could trust
and was putting the striker on her line. As set out above,
Davis was a nonstriker who had openly expressed her oppo-
sition to the strike and had openly related her feelings that
it would not do any good because of her experience in an-
other State. Davis further testified that Tetzlaff asked, ‘‘You
won’t take no bullshit off of em, will you?’’ Davis replied,
‘‘No, you know me better than that.’’ Tetzlaff then asked,
‘‘I can expect you to work her ass off too, can’t I?’’ Davis
told Tetzlaff the striker would ‘‘work as hard as I do.’’
Tetzlaff then said, ‘‘I’ve got that one taken care of’’ and left.
Davis testified further that a few days later Tetzlaff told her
that Reba Cook would be the returning striker and that he
wanted Cook in the middle, ‘‘because I want you to work
her ass off.’’ Davis explained that she was working on a
three person line and that, as the first person in the line,
Davis could set the pace while the other experienced person
on the end would ‘‘literally take the motor out of the per-
son’s hands.’’ The net result is that, ‘‘You can work their
ass off.’’ Tetzlaff acknowledged that he had discussed
Cook’s return with Davis and denied that he had told Davis
to ‘‘work her ass off.’’ Rather he testified,
I said I expect her to do the same amount of work that
I expect everybody to do out here. I said I expect no
more, but I expect or will expect no less. And I said
that has to be expected and done out here. And that
was the understanding.
I credit Davis’ specific and detailed version of these con-
versations. As the General Counsel contends in her brief, I
found the colloquial version of Davis credible as contrasted
to the stilted version of Tetzlaff as set out above. Moreover,
as there is no evidence that Cook had a prior poor work
record and as the initial conversation with Davis did not even
specifically mention Cook, I conclude that Tetzlaff was di-
recting Davis to impose more strenuous working conditions
on Cook than on other employees. Although Davis testified
she did not follow the directions of Tetzlaff in this regard
and in fact helped Cook on her return, I nevertheless con-
clude that Tetzlaff’s comments were unlawful directions to
Davis to impose more strenuous working conditions on Cook
because of her engagement in the strike and that Respondent
thereby violated Section 8(a)(1) of the Act.
6. The comments of Tetzlaff to Reba Cook
Cook testified she incurred no problems on her return to
work with the exception of two incidents involving employee
Jerry Holt who had circulated the decertification petition. On
one occasion Holt made adverse comments toward Cook as
a union adherent and striker in the lunchroom. On another
he placed an enlarged copy of an antiunion policy in Re-
spondent’s handbook (which will be treated infra) at Cook’s
work station. On both occasions Davis protested the conduct
of Holt to management. In May 1987, Tetzlaff spoke with
Cook and appeared angry with her rather than Holt when
Cook told Tetzlaff she had seen Holt place the copy at her
workplace. Cook told Tetzlaff she could handle the matter
but that it was Davis who was upset about it. To this,
Tetzlaff responded, ‘‘It ain’t none of Connie’s damn busi-
ness. I’ll take care of Connie myself.’’ Cook’s testimony was
unrebutted and I credit it.
I find that Tetzlaff’s comments that he would take care of
Davis in light of his angry manner exhibited toward Cook
and Davis over what was clearly an unprovoked prank by
Holt constituted a threat of unspecified reprisal against Davis
for her engagement in protected concerted activities in de-
fending her fellow employee from harassment because of her
union activities and that Respondent thereby violated Section
8(a)(1) of the Act.
7. The comments of Supervisor Grea Free to Connie
Davis regarding her contacts with returned strikers
Connie Davis testified that she and Reba Cook and other
returned strikers became friendly and would associate with
each other by taking breaks at the same time. Shortly after
the threat directed at Davis to Cook by Tetzlaff, Supervisor
Greg Free told Davis, ‘‘Connie me and you’ve been real
tight ever since we’ve been working here together . . . and
I wouldn’t dare presume to try to tell you who to take breaks
with or who to associate with . . . but let me give you a
warning . . . you need to be careful . . . there’s some peo-
ple upstairs that are thinking that you’re being swayed by the
Union.’’ I credit Davis’ testimony which was unrebutted.
Given the timing of the issuance of this warning shortly
after the incident testified to by Cook concerning Tetzlaff’s
threat against Davis and the nature of the warning itself
which I find was inherently coercive, I find that Free threat-
ened Davis with management’s concern that she might be-
come a union supporter herself and the possibility of unspec-
ified reprisals by management and I find that by Free’s issu-
1361OUTBOARD MARINE CORP.
5 A note on credibility determinations: As can be noted I have
credited the General Counsel’s witnesses over those of the Respond-
ent in this decision. I found the General Counsel’s witnesses to be
specific and detailed in their testimony whereas much of the testi-
mony of Respondent’s witnesses, particularly with respect to the
8(a)(1) violations was limited to terse denials. In making my credi-
bility determinations I have relied on demeanor and the content of
those conversations and the context in which they took place. I have
also noted that considerable weight should be given to current em-
ployees in Respondent’s employ who testify to matters adversely to
Respondent’s position. I have also considered Respondent’s argu-
ment that I should not be swayed by the General Counsel’s attempt-
ing to parade a multitude of violations before me and that I not con-
clude that where there is smoke, there is fire. I find, however, that
there simply was a litany of violations committed by the Respondent
over a period of several years in its unceasing attempts to rid itself
of the Union and that there was established a pattern of unlawful
activities by Respondent directed toward that end as found here.
ance of this threat Respondent violated Section 8(a)(1) of the
Act.
8. Tetzlaff’s comments to Davis regarding her
union affiliation
Davis testified that the morning after Free ‘‘warned’’ her,
she sought out Tetzlaff and said, ‘‘I understand that maybe
you might think I’m being swayed toward the Union’’ and
that Tetzlaff replied, ‘‘I’ve got reason to believe it.’’ Davis
testified she then ‘‘defended’’ herself and asked Tetzlaff
about Holt. Tetzlaff told her that Holt denied placing the
copy at Cook’s work station and that he believed Holt not-
withstanding Davis’ statement that she had seen Holt put up
the copy. Davis then told Tetzlaff that some of the employ-
ees ‘‘on the line’’ wondered if management had put Holt up
to this and that Tetzlaff ‘‘just kind of grinned’’ and said ‘‘It
could be.’’ Tetzlaff then interrupted Davis as she was talking
and said ‘‘a word to the wise’’ and ‘‘let me give you a warn-
ing.’’ Davis then walked off. Tetzlaff denied that the entire
conversation had occurred. I credit Davis’ explicit and clear
testimony over the general denial of Tetzlaff.
Accordingly, I find that Tetzlaff threatened unspecified re-
prisals against Davis because of her concerted activities in
defending Cook against harassment directed at her because
of Cook’s engagement in concerted activities and that Re-
spondent thereby violated Section 8(a)(1) of the Act.
9. The comments of Plant Manager DeFalco to
returning strikers
In addition to DeFalco’s statement in the January 21, 1987
meeting with employees that the plant was union free and
would remain so as long as he was there, DeFalco stressed
this with other individual strikers on their return. Reba Cook
testified that at the time of her return on April 27, 1987,
DeFalco told her ‘‘that there was not a union at OMC and
there was not going to be a union at OMC.’’ Employee strik-
er Scotty Parker testified that on September 10, 1987, when
he was returned to work, DeFalco told him, ‘‘there was not
a damn union here and there never would be a damn union
here.’’ DeFalco did not deny having made either statement
and Cook’s and Scotty Parker’s testimony stands unrebutted
and credit it.5
F. The Alleged Unlawful Implementation of Unilateral
Changes in Wages and Insurance Benefits on or about
January 15 and 21, 1986
The parties had commenced bargaining for their first labor
agreement in May 1985. The Union’s negotiating team was
led by its chief spokesman, International Representative
Richard Barnes, except for a brief period in the fall of 1985
when Barnes was in the Soviet Union and was temporarily
replaced by Union Business Representative Howard Henson.
The Company’s initial chief spokesman was Jim Short from
its Waukegan, Illinois headquarters. In August 1985 Jim
Miles, a partner in the law firm of Haynesworth, Balwin,
Miles, Johnson, Greaves, and Edwards was permanently sub-
stituted as chief spokesman for Short during the remaining
course of the negotiations. Also present during negotiations
as a member of the Union’s negotiating committee was Reba
Cook. Also during negotiations along with Short and subse-
quently Miles was Respondent’s director of employee rela-
tions for manufacturing, Bob Earlie.
At the commencement of negotiations the Respondent pro-
posed and the Union agreed that the language of the labor
agreement would be negotiated first and the economic pack-
age would be negotiated after the language had been re-
solved. When Miles took over as chief spokesman in August
1985, he stated that this arrangement was acceptable to him.
Although the General Counsel has not alleged surface bar-
gaining in this case to have led to the strike, she does con-
tend that certain of the conduct of Respondent’s chief
spokesman, Miles, should be reviewed and considered as evi-
dence of Respondent’s overall bad-faith bargaining conduct
and animus toward the Union. Specifically she points to the
unrebutted testimony of Barnes which is corroborated by the
testimony of the Union’s bargaining committee member,
Reba Cook, both of whom I credit in this regard, that in Sep-
tember 1985 shortly before Barnes was scheduled to be out
of town on a trip to the Soviet Union, he informed Miles that
Howard Henson, a union business agent, would substitute for
him during his absence. Barnes asked Miles to take it easy
on Henson as he had recently undergone surgery and was
‘‘having a tough time.’’ Cook recalled that Barnes had told
Miles that Henson had been terribly sick and had had a bout
with cancer and was taking medication. Miles agreed to take
it easy on Henson. However, at the final 2-day session in
September Miles, in contrast to the parties’ agreement to
defer economics until the contract language was resolved,
asked Barnes for an economic proposal although only a few
minor language agreements had been reached thus far.
Barnes testified that the Union objected to this but ‘‘reluc-
tantly’’ agreed to do so, and the Union drafted a complete
new contract proposal including economics which was pre-
sented to Respondent by Henson at the following session on
October 7, 1985, in Barnes’ absence. Just prior to lunch on
that date, Miles told Henson that Respondent gave raises to
all its plants at that time of year and wanted to give the bar-
gaining unit members a 5-percent wage increase effective
immediately. Henson testified that he was ‘‘shocked’’ and
told Miles that he was ‘‘playing games’’ and rejected the
offer as there were numerous unresolved contractual issues.
Miles persisted in his demand and increased the raise to a
5-1/2-percent increase if Henson would sign off on it.
Henson told Miles he could do as he pleased but that he
would not agree to it. Cook corroborated Henson’s
1362 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
unrebutted testimony and testified that subsequently the Re-
spondent’s negotiating committee caucused and on their re-
turn Miles told Henson that the Respondent would remain
willing to negotiate wages if Henson would sign off on the
wage increases. Henson rejected this offer also. Earlie testi-
fied that normally Respondent commenced its wage reviews
in August. It is undisputed that there had been no mention
of an upcoming time of year for wage increases made to
Barnes prior to his departure. The Respondent did not further
attempt to explore the wage increase with the Union but rath-
er on the next day, posted a notice to all the bargaining unit
employees, stating in part, that ‘‘Last night the Company
proposed to the Union that your wages be increased across
the board by 5.5 percent effective yesterday, October 7,
1985.’’ The notice also set out other benefit increases pro-
posed to be implemented by Respondent but stated that the
Union had objected to the proposed wage and benefits in-
creases.
From the foregoing the General Counsel contends and I
find that the Respondent through its chief spokesman, Miles,
was engaging in manipulative conduct and gamesmanship
designed to undermine the Union. I further find as contended
by the General Counsel that the foregoing is evidence of but
one aspect of Respondent’s predetermined plans to rid the
Calhoun Plant of the Union.
Barnes testified that subsequently at a December 10, 1985
negotiating session, he asked Miles whether the Union would
have to strike to get a contract and Miles responded that it
looked like the Union would have to strike to get a contract
and then related to Barnes that the Respondent had a history
of ‘‘caving in’’ on prior occasions after the commencement
of a strike. Miles acknowledged the conversation and did not
specifically deny Barnes’ testimony which I credit. At this
meeting Miles also asked Barnes to give him a ‘‘final’’ pro-
posal that the Respondent could not live without and that he
would present it to the management in Waukegan, Illinois,
the Respondent’s corporate headquarters and try to sell it.
The Union presented Respondent with a new contract pro-
posal at a brief meeting held on January 6, 1986. At a subse-
quent meeting held on January 15, 1986, the Respondent pre-
sented the Union with a counterproposal which included
changes and modifications from its previous position and of-
fered to discuss additional changes. Miles also offered a new
checkoff procedure by which direct bank deposits of dues
would eliminate the need for Respondent to be involved as
a result of its statement that it did not want to know who
were or were not dues paying members, and stated that this
proposal was negotiable.
The Union thereafter typed up a new proposal on its word
processor and presented it to Miles on that date after mid-
night. The new proposal contained a number of changes of
both major and minor impact. The proposal also contained
a modification of the traditional grievance procedure that had
been sought by the Union which would limit the utilization
of outside union representation in deference to the peer re-
view type of grievance machinery initially proposed by the
Respondent on October 7, 1985. The Respondent’s initial
proposal on peer review had excluded union participation but
had subsequently been modified by the Respondent in a writ-
ten proposal given to the Union on January 14, 1986, the day
prior to this meeting. At the time of the presentation of the
Union’s proposal after midnight on January 15, 1986, Barnes
told Miles that he was willing to negotiate all night in order
to prevent a strike which had been called by the Union for
January 15, 1986, but Miles declined stating that he was too
tired to negotiate further and informed Barnes that the parties
were at an impasse. Barnes told Miles this was not possible
as he had just given Respondent a new proposal and that Re-
spondent had not responded to questions asked by Barnes
concerning its proposal. At this point the parties agreed to
a new date for another meeting and concluded the meeting.
The Respondent contends that the parties reached a dead-
lock on the night of January 14, 1986, and that it properly
asserted that an impasse existed as bargaining had been on-
going over an 8-month period encompassing 24 sessions and
that numerous important issues remained unresolved includ-
ing the three most critical areas: (1) arbitration, (2) checkoff,
and (3) wages. Respondent contends it was deadlocked on
arbitration as it had since October 1985 insisted on a concept
of peer review whereas the Union initially indicated a will-
ingness to consider peer review in December but by January
had reverted to its initial demand for binding arbitration, as
shown in the Union’s January 6 and 14 proposals whereas
the Respondent’s January 14 proposal contained a peer re-
view system, and that Barnes did not indicate any willing-
ness to discuss peer review. With respect to checkoff Re-
spondent contends that it was also at an impasse with the
Union as the Union had proposed traditional checkoff where-
as the Company was adamantly opposed to traditional check-
off as a result of its desire not to have knowledge of whether
an employee was or was not a member of the Union. Re-
spondent contends that Barnes at no time indicated a willing-
ness to back off from a traditional checkoff. Respondent also
contends that the parties were also at odds on wages as the
Union’s January 14 proposal remained unchanged from its
January 6 proposal on wages and was significantly different
from the Respondent’s proposal and that Barnes did not indi-
cate any room to move. The Union’s proposal called for ‘‘a
Labor Grade 3 rate of $7.00 per hour effective January 1,
1986, with gradual progression up to $7.98 on January 1,
1987 and $8.30 on January 1, 1988,’’ whereas Respondent’s
final proposal called for ‘‘a starting rate of $5.82 effective
January 5, 1986, ‘‘with progression to $6.08 after 3 months
service, $6.35 after 6 months and $6.68 after 9 months.’’
Miles testified he told Barnes there was no way the parties
were going to get an agreement with the positions the parties
were taking and Barnes said that he would have the pickets
up at 6 a.m. and the parties agreed to another meeting and
left.
Barnes testified that Miles only glanced at the proposal he
had given him on January 14 which inadvertently had in-
cluded the original position of the Union on the traditional
grievance arbitration machinery as a result of a problem with
the word processor and then told Barnes the parties were at
an impasse. The General Counsel, in reliance on Barnes’ tes-
timony and the bargaining notes which reflect that Barnes
told Miles he did not understand the Respondent’s position
on checkoff, contends that Barnes sought clarification of the
Respondent’s verbal proposal of direct bank deposit for
checkoff. Thus the General Counsel contends no deadlock
existed on this issue.
Similarly the General Counsel contends there was no
deadlock with respect to wages as Barnes testified he told
Miles there was room for negotiation on this and that he
1363OUTBOARD MARINE CORP.
needed to know what Respondent was proposing for the term
of the contract which would impact on the economic pro-
posal. The General Counsel also contends there was move-
ment on the issue of dental coverage in the Union’s January
15 proposal. The General Counsel also contends there was
no impasse with respect to grievance arbitration as the parties
had been presenting alternatives to the position of each other
between the Respondent’s peer review proposal and the
Union’s grievance arbitration proposal and that in the last
union proposal of January 15 the Union limited the participa-
tion of nonemployee union representatives in the early stages
of the grievance procedure.
I find that the parties were not at an impasse on January
15 when the Respondent asserted an impasse existed. Rather
I find that the evidence is clear that Respondent through its
chief spokesman, Miles, sought to declare an impasse as a
part of its overall plan to rid itself of the Union.
It is well established that under certain circumstances an
impasse may exist between parties during the course of col-
lective bargaining over mandatory subjects of bargaining
such as wages, union checkoff, and grievance arbitration as
were involved here and that if an impasse is found to exist,
the parties are free to assert economic pressure and under
such circumstances an employer may implement its
preimpasse proposals. However, there must be a valid dead-
lock to the point where further bargaining at that point is fu-
tile. Further the assertion of an impasse must be made in
good faith and not be merely designed to frustrate the bar-
gaining process. Moreover the burden of proof is on the
party asserting the impasse.
In NLRB v. Katz, 369 U.S. 736, 743 (1962), the Supreme
Court held:
an employer’s unilateral change in conditions of em-
ployment is similarly a violation of Section 8(a)(5), for
it is a circumvention of the duty to negotiate which
frustrates the objectives of Section 8(a)(5) much as
does a flat refusal.
In Taft Broadcasting, 163 NLRB 475, 418 (1967), petition
for review denied 395 F.2d 622 (D.C. Cir. 1968), the Board
held:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the importance of the issue, or
issues as to which there is disagreement, the contem-
poraneous understanding of the parties as to the state of
the negotiations are all relevant factors to be considered
in deciding whether an impasse in bargaining existed.
See also Roman Iron Works, 282 NLRB 725 (1987); D.C.
Liquor Wholesalers, 292 NLRB 1234 (1989); Old Man’s
Home of Philadelphia, 265 NLRB 1632 (1982).
I find that the Respondent’s assertion of an impasse was
pretextual and was not made in good faith and the unilateral
changes made by it pursuant thereto were unlawful. I have
reviewed the course of bargaining and the conduct of Re-
spondent in its recall of strikers which will be discussed infra
and I am convinced that the assertion of impasse by Miles
was a ploy utilized to further Respondent’s plan of ridding
itself of the Union. Initially, Miles is a seasoned professional,
who has negotiated many labor agreements. His action in the
fall of 1988 with respect to the immediate raise proposal and
the Respondent’s next day posting of the Union’s rejection
of it were clearly intended to undermine the Union during
the absence of its chief negotiator, Barnes. I also find that
Miles’ comments to Barnes in December were designed to
encourage the Union to strike. I find that Miles’ rush to
judgment to declare that the parties were at an impasse on
January 15, 1986, was motivated by Respondent’s efforts to
declare an impasse and to impose increases in wages and
benefits in order to quickly attract new hires to replace the
employees who went out on strike. Although the hour was
admittedly late and conceding that Miles may have indeed
been tired, his actions in asserting an impasse although not
reviewing the new proposal in detail and his casting aside
Barnes’ efforts to negotiate were at least premature and the
imposition of the unilateral charges in wages and benefits ef-
fective January 15, 1986, were precipitous. Thus, under all
these circumstances find that the Respondent’s assertion of
an impasse was premature and was pretextual. The unilateral
advertising and implementation of the wage and benefit in-
creases were violations of Section 8(a)(5) and (1) of the Act
as no valid impasse existed and were also violative of Sec-
tion 8(a)(3) and (1) of the Act as they were designed to fur-
ther Respondent’s plan to rid itself of the Union and thus
violated the employees’ Section 7 rights to join and support
a union.
G. The Alleged Refusal to Bargain with Respect to
Training Employees for the Peer Review Appeals Panel
The General Counsel contends that the Respondent refused
to bargain with respect to training employees for the peer re-
view appeals panel. The Respondent contends that the Union
waived its right to bargain with respect to this issue by the
withdrawal of an earlier demand over this issue, its accept-
ance of the Respondent’s demand and its agreement to an
initial labor agreement which contained a zipper clause. On
approximately October 7, 1988, the Respondent proposed a
‘‘peer review’’ procedure in lieu of a traditional griev-
ance/arbitration procedure. The peer review procedure ex-
cluded the Union from the entire process and designated the
plant manager as having final authority. As the Union’s chief
spokesman, Barnes, was not present during the negotiations
in October, he initially discussed the peer review proposal
with Respondent’s chief spokesman Miles in November.
Barnes testified he asked a number of questions of Miles
concerning the peer review procedure and remarked, ‘‘I
guess you’re going to train them too,’’ to which Miles re-
plied in the affirmative. Barnes further testified that Miles
told him that the employees would have to be trained after
hours. Barnes then asked Miles whether he would object to
Barnes’ coming into the plant to participate in the training
and Miles told him I think we can work that out. Miles testi-
fied he replied ‘‘that is correct’’ to Barnes inquiry whether
Respondent was going to train the employees but did not
specifically address Barnes’ further testimony that he had
made the further inquiry concerning whether Barnes could
enter the plant to participate in the training to which Miles
had replied I think we can work that out. As this testimony
of Barnes was not specifically rebutted by Miles credit it.
The General Counsel contends and the record supports that
there was no other mention during negotiations of the exclu-
sion of the Union from the training process. Barnes testified
1364 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 The January 14 session lasted past midnight into January 15.
without rebuttal that he informed Respondent at this meeting
that union participation would be essential to its agreement
to a peer review program. On November 19, 1985, the Union
submitted a written proposal containing a method of peer re-
view which provided for joint training for members of the
employee panel. This proposal was rejected by the Respond-
ent. On January 6, 1986, the Union proposed a traditional ar-
bitration grievance procedure (G.C. Exh. 75) and on January
15, 1986, it proposed an arbitration/grievance procedure
which excluded nonemployee representatives from the union
grievance committee at the initial stages of the grievance
procedure (G.C. Exh. 76). Both the January 6 and 15 pro-
posals were silent on the subject of appeals panel training.
The parties adopted the January 146 peer review system pro-
posal of the Respondent when they entered into an agreement
on January 21. This proposal is silent on the subject of who
will train the employees. The contract also contained a zipper
clause. Shortly after the execution of the contract Union
Business Representative Barnes made two letter demands to
discuss the joint training of the employees for the peer re-
view panel which demands were ignored by the Respond-
ent’s plant manager. Thereafter subsequent attempts by the
Union to discuss or obtain information concerning the train-
ing of employees for the peer review panel were also ig-
nored.
Analysis
As set out above, I have credited Barnes that the Respond-
ent through its agent, Miles, had at the November meeting
indicated that ‘‘we can work that out’’ in relation to the
Union’s request for participation in training. Although the
Respondent rejected the December peer review proposal of
the Union which included joint training of employees for the
peer review panel and included arbitration and, although the
Union’s subsequent proposal of January 15 of binding arbi-
tration was rejected by the Respondent, the Respondent’s
proposal ultimately included in the agreement entered into by
the parties is silent concerning who will conduct the training.
Thus, there was no express waiver of the Union’s right to
bargain concerning participation in the training of employees
to serve on the peer review panel. I find that the Board’s de-
cision in Public Service Electric Co., 269 NLRB 467, 468
(1984), relied on by Respondent in its brief is distinguishable
from the instant case. In Public Service the Board found that
a new contract executed by the Union contained a provision
which specifically excluded retroactively of a wage increase
voiding a prior contract clause which had permitted retro-
actively and held that the Union had thus bargained away its
claim to retroactively. Similarly, I also find Saint Mary’s
Hospital, 260 NLRB 1237 (1982), cited by Respondent is
distinguishable on its facts, as among other things, that case
involved the Employer’s rejection of an entire proposal for
a dental plan whereas in the instant case the joint training
of employees was but one aspect of peer review which was
not covered in the clause. Rather I find the case of Collateral
Control Corp., 288 NLRB 308 (1988), cited by the General
Counsel is in point as the Board in that case rejected the Em-
ployer’s reliance on generalized language concerning the Re-
spondent’s rights to discretion as to the number of guards it
would employ and the existence of a broad zipper clause in
a labor agreement as justification for concluding that the
Union had waived its right to bargaining on subcontracting
work. The Board said, ‘‘To establish waiver of a statutory
right, that right must be clearly and unmistakably relin-
quished’’ and ‘‘a merely plausible reading does not meet the
clear and unmistakable standard.’’ In sum I find that the
Union did not expressly waive its right to bargaining con-
cerning the training of employees for the peer review panel
and that in the absence of an express waiver, waiver may not
be inferred even if said inference might appear plausible
under the circumstances. I thus find that Respondent violated
Section 8(a)(5) and (1) of the Act after the execution of the
labor agreement when it ignored the Union’s request to bar-
gain concerning the training.
H. The Alleged Unilateral Changes in Leadperson
Duties and Pay
The General Counsel introduced unrebutted testimony
which established that the Respondent instituted unilateral
changes in leadperson’s duties and pay after the strike. This
resulted at least in part from Respondent’s shrinking of the
work force after the initial surge of hiring the first few days
of the strike. As the work force diminished, employees who
were used primarily as leadpersons were required to man the
stations and thus performed fewer and sometimes none of the
leadpersons’ duties. The shrinking of the work force was the
result of Respondent’s decision to delay the return of the
strikers by not replacing its work force after the initial surge
of hiring the first few days of the strike as a result of the
transfer of work out of the plant and the unilateral institution
of numerous process changes. Moreover, there was evidence
of disparate treatment by Respondent of the strikers and non-
strikers. Thus some leadpersons ceased performing
leadperson duties such as assisting with training of employ-
ees and problems on the line and relieving employees and
doing necessary paperwork as the number of employees di-
minished. In some instances nonstrikers continued to receive
a 25-cent-per-hour increment although they no longer per-
formed leadperson duties. Conversely, returning strikers were
required to perform leadperson duties but were not paid the
25-cent-per-hour increment for doing so.
Under these circumstances, I find that Respondent violated
Section 8(a)(5) and (1) of the Act by its unilateral elimi-
nation of leadpersons duties and pay without bargaining
these changes with the Union. I find that Respondent’s reli-
ance on the contractual right in the labor agreement to reduce
the work force does not lend support to its position that it
had the right to unilaterally eliminate leadperson duties and
pay. I further find that the unrebutted evidence that certain
nonstriking employees were permitted to retain their 25-cent-
per-hour increment although they were no longer required to
perform leadperson duties whereas certain returning strikers
were required to perform leadperson duties with no incre-
ment in pay is evidence of disparate treatment practiced by
Respondent against returning strikers which I conclude based
on the established animus toward employees who supported
the Union in the strike was the motivating factor in Respond-
ent’s disparate treatment toward the returning strikers. I find
that Respondent has failed to rebut this evidence. I therefore
conclude that Respondent also violated Section 8(a)(3) and
(1) of the Act by its disparate treatment of returning strikers
with respect to leadperson duties and pay. I recommend that
1365OUTBOARD MARINE CORP.
Respondent be required to extend retention of leadperson pay
with backpay and interest to the returning strikers who were
leadpersons at the time of the strike in accordance with its
extension of this benefit to nonstriking employees.
I. The Alleged Unilateral Elimination of
Bargaining Unit Jobs
The General Counsel contends that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by the unilateral
elimination of jobs without bargaining with the Union. The
General Counsel contends that as a result of Respondent’s
‘‘predetermination to rid itself of the Union’’ ‘‘the only pos-
sible interpretations of its actions are (1) that in fact jobs
have not been eliminated and Respondent has advanced the
defense as a shifting pretext for its unlawful refusal to recall
strikers as its employment complement declined; or (2) that
Respondent engaged in deliberate concealment of job elimi-
nations from the Union and a ‘flagrant’ disregard of its bar-
gaining obligation.’’ In support of its contention the General
Counsel relies on the direct testimony of Plant Manager
DeFalco who it called as an adverse witness and who was
questioned at length concerning planned and actual employ-
ment levels and direct and indirect employees and concludes
that the plant was originally slated to employ approximately
500 people and that the decline in the work force after the
strike was ‘‘an unwarranted underutilization of this facility.’’
The General Counsel contends that numerous process
changes testified to by Respondent’s engineer, William
Hayes, did not account for the down sizing of the work force
and that even if they did that Respondent had an obligation
to bargain about the elimination of jobs.
The Respondent produced a multitude of basically
unrebutted testimony which I credit which demonstrated that
the plant had never achieved the original production stand-
ards, that as a result of a continuous production line in the
plant, numerous bottlenecks occurred which hampered pro-
duction, that the paint department had an airflow problem
that resulted in dirt and debris in the paint utilized to paint
the motors, that as a result of these and other process prob-
lems and poor housekeeping the plant was inefficient and
produced an inferior product with numerous quality problems
and resulting in dissatisfied customers and a deterioration of
the demand for the product.
As a result a new plant manager, Sam DeFalco, was
brought in with instructions to get the quality problems re-
solved, obtain a satisfactory production yield, and only then
maintain schedule. To this end DeFalco shut down the plant
for a day, cleaned up the debris, met with the employees,
and stressed that the job must be done right the first time
and eliminated inspectors and drastically reduced the number
of repair persons as a result of improved product quality.
Analysis
I credit the testimony of Engineer Hayes and other wit-
nesses concerning numerous process changes which elimi-
nated bottlenecks and problems and improved quality. I also
credit the testimony of DeFalco that he discontinued making
certain motors until the quality and product yields could be
improved. I do not find that any of the process changes made
in this regard were unlawful nor that the initial shutdown of
production by DeFalco were unlawful. As the Supreme Court
has recognized, ‘‘bargaining over management decisions that
have a substantial impact on the continued availability of em-
ployment should be required only if the benefit, for labor
management relations and the collective-bargaining process,
outweighs the burden placed on the conduct of the busi-
ness.’’ First National Maintenance Corp. v. NLRB, 452 U.S.
666, 667 (1981). See also Otis Elevator Co., 269 NLRB 891
(1984), wherein the majority of a three-member panel held
there was no duty to bargain over ‘‘decisions which effect
the scope, direction or nature of the business’’ but that bar-
gaining was required over management decisions which turn
‘‘upon a reduction of labor costs.’’ See also Pertec Computer
Corp., 284 NLRB 810 (1987). In the instant case it appears
that these various process changes were ongoing efforts to
improve plant efficiency and the quality of the product rather
than on a reduction in labor costs. I thus find no violation
was committed by the various process changes.
However, the collective-bargaining agreement entered into
by the Respondent and the Union effective January 21, 1986,
states at article XIV:
Rates for New or Changed Jobs
When the installation of new equipment or a change in
methods, layout or work assignments result in the cre-
ation of a new job classification and/or the elimination
of a job classification and/or results in a significant
change in the job responsibilities of existing job classi-
fications, the company will notify the union and request
negotiations on the effected job classification. During
the period of negotiation, the company shall establish a
rate for the job classification in line with the current
scale for like work. [Emphasis added.]
There was no evidence of any waiver by the Union to be no-
tified of the elimination or changes in job positions con-
templated by the Respondent. Notwithstanding this, various
jobs were eliminated such as inspectors and leadmen and the
Union was never notified of these actions by the Respondent.
Accordingly, I find that the Respondent had a clear duty
to bargain concerning the effects of its process changes such
as the elimination of jobs such as inspectors and leadmen but
failed to do so or to even notify the Union of these job
eliminations and thereby violated Section 8(a)(5) and (1) of
the Act. See Collateral Control Corp., 288 NLRB 308
(1988). Re: subcontracting, SMCO, Inc., 286 NLRB 1291,
1296 fn. 18 (1987). Re: bargaining over effects of decision
to close, St. Louis Gateway Hotel, 286 NLRB 863 (1987).
Re: duty to bargain on effects of decision to close, Sands
Motel, 280 NLRB 132 (1986); Central Soya Co., 281 NLRB
1308 (1986).
J. The Alleged Unilateral Imposition of a ‘‘Labor
Pool’’ Policy
The General Counsel contends that the Respondent vio-
lated Section 8(a)(5) of the Act by its unilateral imposition
of a ‘‘Labor Pool’’ policy and its consequent change from
its prior practice of having employees designated in specific
jobs and that such changes in policy and practice were also
violative of Section 8(a)(3) as they were discriminatorily mo-
tivated by and part of Respondent’s unlawful scheme to de-
feat strikers’ recall rights and to rid itself of the Union. In
support of its position the General Counsel produced a large
1366 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
number of witnesses who testified that they were seldom
moved prior to the strike but that after the strike they were
moved frequently. Respondent produced witnesses who testi-
fied they were moved to other jobs prior to the strike but
certain of these witnesses also testified they were moved
more frequently after the strike. Some of the movement prior
to the strike was associated with the shutdown of the second
shift in 1985 and the transfer of some of those employees
to the first shift. Some of the transfers in 1985 were also as-
sociated with a layoff of employees in 1985. The General
Counsel produced exhibits based on Respondent’s daily labor
records that showed that the total number of transfers per
employees in 1985 were significantly lower than those in
1986 after the strike. Union Business Representative Barnes
testified without rebuttal and was corroborated by Chief
Steward Reba Cook that the term ‘‘labor pools’’ was not
used in negotiations although the Union had offered a pro-
posal in its 1985 negotiations to create a utility crew which
would be subject to movement and paid an additional incre-
ment in wages for this in response to complaints by the few
employees who were subject to movement. By and large the
few employees who were subject to movement were more
knowledgeable or skilled leadpersons who were used to as-
sist other employees or fill in with their departments and oc-
casionally in other departments. The Respondent rejected the
Union’s proposal to create a utility crew as proposed by the
Union. Chief Steward Reba Cook testified without rebuttal
that Plant Manager John Florip told her that the skills of the
various positions were not interchangeable.
However, shortly after the strike the Respondent com-
menced to create its concept of a labor pool whereby em-
ployees could be moved from one job to another. Employees
hired as strike replacements were told they would be moved
frequently as required. Supervisors told employees they were
part of a pool. In a ‘‘Memo from the Desk of Sam DeFalco’’
in late 1987 Plant Manager DeFalco reflected on achieve-
ments of 1987 and stated in pertinent part ‘‘Some of the im-
provements are obvious as you look at the plant. Many peo-
ple wondered what changed. Simply stated a team developed
instead of individuals we are a more flexible organization.
Our lives are not dedicated to one Specific job, and there-
fore, we can reorganize the schedule as our customer’s needs
change. Since all of our workers are now trained in more
than one job, our productivity has soared. That fact has cre-
ated the ability to compete in world wide competition. . . .
The variety of work has allowed an employee to have some
control over their jobs and how they, are to be done. . . .
Our flexibility has given birth to a concept that creates an
atmosphere of change.’’ Moreover DeFalco acknowledged on
the stand that this policy was a change and that he had nei-
ther notified the Union or offered to bargain concerning it.
Respondent relies on testimony of employees who testified
they were transferred from one job to another prior to the
strike and on records for selected periods of 1985, 1986, and
1987 which show a larger number of permanent transfers of
labor grade 3 employees prior to the strike than after the
strike. However, the General Counsel points out that the total
number of employees in 1985 was significantly greater than
in 1986 and 1987 and that the significant statistic is the num-
ber of transfers per employee which increased significantly
from 1985 to 1986. The Respondent also relies on contrac-
tual language in the management-rights clause which permits
it ‘‘to temporarily transfer employees, between jobs, shifts,
and departments in order to maintain efficient and/or eco-
nomical operations.’’
Analysis
I find that the General Counsel has established that the Re-
spondent engaged in an unprecedented policy of utilizing
employees as part of a labor pool system as it saw fit after
the advent of the strike. Initially, the evidence is convincing
based on both the overwhelming testimony that there was a
significant increase in the transfers of employees after the
strike from the periods prior thereto. Moreover, the advent of
this policy was specifically acknowledged in the memo of
Plant Manager DeFalco in late 1987 and by his testimony on
the stand at the hearing wherein he described numerous
changes and acknowledged that he had not notified or bar-
gained with the Union concerning them. I also find the
records are supportive of the General Counsel’s position as
they show that transfers per employee increased significantly
in 1986 from those of 1985 prior to the strike. I also find
that the contract language of the management-rights clause is
not relevant to this issue as it addresses only a recognition
that there may be a necessity for temporary transfers which
had concededly occurred in the past.
I therefore find that the Respondent violated Section
8(a)(5) and (1) of the Act by its institution of a labor pool
policy and deviated from its past practice of assigning em-
ployees to a single job with only limited transfers without
bargaining with the Union. I also find that the utilization of
this policy was in part motivated by its efforts to thwart the
return of the strikers by transferring the replacement employ-
ees to job openings rather than recalling strikers and that Re-
spondent has failed to demonstrate that it would have insti-
tuted this policy in the absence of this unlawful motive and
that Respondent accordingly also violated Section 8(a)(3) and
(1) of the Act by the implementation of the labor pool
among its labor grade 3 employees.
K. The Withdrawal of Recognition and Additional
Alleged Unilateral Changes
The Respondent withdrew recognition from the Union by
its letter of November 17, 1986, from Employee Manager
John Stoy and by a followup letter of December 1, 1986, by
its attorney and chief negotiator, James Miles, ostensibly on
the basis of a decertification petition which was circulated
and signed by 153 of 286 bargaining unit employees on Oc-
tober 23 and 24, 1986, and presented to Plant Manager Sam
DeFalco. Prior to the withdrawal of recognition Plant Man-
ager DeFalco’s son-in-law, Supervisor Todd Nicholas, told
employees that a petition had been circulated and that man-
agement would know who signed it. Additionally, DeFalco
in his ‘‘Luncheon with Sam’’ meetings in the fall of 1986
alluded to the fact that he could not do anything with respect
to adding additional employees and a wage raise until after
the first of the year, an apparent reference to the expiration
of the labor agreement which would permit an employer to
rely on a decertification petition. Subsequent to the with-
drawal of recognition by the Respondent, the Respondent
also instituted unilateral increases in wages and benefits, re-
moved the union bulletin board and engaged in direct bar-
gaining with its employees concerning the attendance policy,
1367OUTBOARD MARINE CORP.
and instituted a new attendance policy. It also announced on
January 26, 1987, that its original daily schedule for January
was not attainable and that rather than ‘‘recall employees for
the balance of January and reduce employees on February
1,’’ it had decided to spread the January arrears (units which
were scheduled for January but not built) into February. Pur-
suant thereto it increased scheduled overtime. The records
bear out the General Counsel’s contention that the increase
in overtime was significant after this point.
Respondent contends it did not commit any other unfair
labor practices and therefore was entitled to withdraw rec-
ognition on the basis of the decertification petition signed by
a majority of employees in the bargaining unit and that as-
suming arguendo that it did commit unfair labor practices,
that they did not contribute significantly to the loss of major-
ity.
Analysis
I find that the Respondent violated Section 8(a)(5) and (1)
of the Act by its withdrawal of recognition from the Union
on the basis of the decertification petition as the alleged
doubt of majority status of the Union was not asserted in a
context free of unfair labor practices. See Guerdon Indus-
tries, 218 NLRB 658, 659 (1975), citing Barrington Plaza &
Tragniew, 185 NLRB 962 (1970), enf. denied on other
grounds 470 F.2d 669 (9th Cir. 1972). Re: an incumbent
union’s presumption of continued majority status following
the expiration of a collective-bargaining agreement . See
Guerdon Industries, supra, citing NLRB v . Gulfmont Hotel
Co., 362 F.2d 588 (5th Cir. 1966), enfg. 147 NLRB 997
(1964). Re: The presumption may be rebutted by evidence
that the union has lost its majority status or by a good-faith
doubt on the part of the employer based on objective consid-
erations (such as the decertification petition in the instant
case). See Guerdon, supra citing Nu-Southern Dyeing & Fin-
ishing, 179 NLRB 573 fn. 1 (1969), enfd. in part 444 F.2d.
11 (4th Cir. 1971). Re: The employer must show that the
doubt was asserted in a context free of unfair labor practices.
In making this decision, I have considered the numerous un-
fair labor practices committed by Respondent in this case
reaching to the top level of the plant management and span-
ning over a 2-year period and my conclusion that the Re-
spondent engaged in an overall pattern of unlawful activities
including unlawful promises of jobs, benefits, and pay raises,
threats of discharge, and plant closure among others and re-
fusal and delay in recalling strikers and discrimination
against returning strikers, which is not an exhaustive list of
the violations found. In these circumstances, I find that Re-
spondent clearly did not have a good-faith doubt of the
Union’s majority status as the circulation of the petition did
not occur in a context free of unfair labor practices.
Choctawhatchee Electric, 274 NLRB 595 (1985).
I accordingly also find that Respondent violated Section
8(a)(5) and (1) of the Act by its unilateral implementation of
wage and benefit increases, by its direct dealing with the em-
ployees concerning the attendance policy, by its implementa-
tion of a new attendance policy, and by its insertion of the
new union policy in its handbook and its removal of the
Union’s bulletin board. I further find it violated Section
8(a)(5) and (1) of the Act by its unilateral change of its over-
time policy rather than recall strikers in January 1987 and
also violated Section 8(a)(3) and (1) of the Act thereby as
I find that this change in overtime policy was part of its un-
lawful efforts to thwart the return of the strikers .
L. The Alleged Discriminatory Actions of Respondent in
Hiring Excess Replacement Workers and Refusing
to Recall Strikers
There is an overwhelming amount of evidence in this case
that the Respondent formulated and carried out a plan to rid
itself of the Union and its supporters. Initially the number of
8(a)(1) violations found to have been committed over a 2-
year period despite the entry into two separate settlement
agreements by Respondent which agreements I have found
were properly set aside by the Regional Director establishes
Respondent’s animus toward the Union and its supporters.
These 8(a)(1) violations involved threats of futility of support
for the Union (i.e., the parties would be negotiating next year
by Plant Manager Florip and the picket line statement by
Florip that it would be ‘‘a cold day in hell’’ before the strik-
ers got a contract), and threats of job loss, among others.
They also involved promises of benefits if the employees
would withdraw their support for the Union. Moreover, the
course of bargaining itself supports a finding and I so find
that the Respondent sought to frustrate the collective-bar-
gaining process (i.e., the sudden offer of a raise to take place
immediately in October 1985 to the temporary replacement
for the Union’s chief spokesman although the parties had
previously agreed to defer the discussion of economic mat-
ters until the contract language had been worked out and the
comments of the Respondent’s chief spokesman in December
1985 to the Union’s chief spokesman that it would take a
strike to settle the contractual disagreements and obtain an
initial contract and the chief spokesman’s refusal to bargain
further on the eve of the strike claiming fatigue and its rush
to declare impasse which I find did not exist as the Union
was continuing to make movements and had not asserted a
hard and fast position).
Moreover the Respondent’s rush to implement increases in
wages and benefits on the first day of the strike on January
15, 1986, which I find were unlawfully implemented as no
valid impasse existed, and Respondent’s rush to advertise for
and employ new employees and to recall its employees on
layoff and its unprecedented increase of its prestrike com-
plement by in excess of 50 employees over a 6-day period
including an intervening weekend from January 15 to 21
when the Union sent the Employer a notice on behalf of the
striking employees of their unconditional request for rein-
statement and its refusal to rehire several strikers who made
individual offers of reinstatement at 7 a.m. on January 20,
1986, despite Respondent’s hire of new employees on that
date clearly establish the Respondent’s unlawful motivation
in the hire of excess employees to frustrate the recall rights
of the strikers and rid itself of the Union and its supporters.
I find particularly significant and pretextual the timing of Re-
spondent’s contention as soon as it received notice of the
Union’s offer of return on behalf of the strikers that it had
hired a sufficient number of employees. As there was no evi-
dence presented by Respondent that it sought to hire a pre-
determined number of new employees, I find the sudden ces-
sation of hiring on learning of the unconditional offer to re-
turn made on behalf of the strikers is evidence of Respond-
ent’s unlawful purpose of shutting out the strikers and frus-
trating their recall rights. I have carefully reviewed all Re-
1368 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent’s explanations for its conduct in the hiring of ex-
cess employees and suddenly declaring that it had replaced
all of its employees and its subsequent refusal to recall more
than nine of the strikers over the period of over a year de-
spite the decrease in the work force after the new hire flurry
of activity in January 1986 until the point in late summer and
fall of 1986 and continuing thereafter when the work force
had decreased to less than prestrike levels. I have specifically
considered among others, the Respondent’s contentions that
the excess hire of new employees was necessitated by the
upcoming busy season, the anticipation that there would be
a significant turnover, the need to have these new employees
quickly as their instructors were drawn from other plants to
train them and reject these reasons as pretextual. I also reject
as pretextual the reasons put forward by Respondent and
most particularly its plant manager, Sam DeFalco, that his
decision not to recall strikers after the loss of a significant
number of replacement employees was premised on his need
to clean up the product quality problems and resolve various
plant problems by decreasing production until matters were
successfully resolved. As found above, I credit the testimony
of employee Evelyn King that DeFalco told the employees
gathered at the September luncheon meeting that there would
not be any new employees added until after the end of the
year (a time when the labor agreement was due to expire)
and that he told the employees that he could get all the work
they could handle and the testimony of employees that
DeFalco told them at the October luncheon meeting that he
would look at a few strikers but it would only be a few and
that he realized that people got caught up in the flow of
things and that it would be awfully cold out there in January
and awfully warm inside. I find that these statements clearly
support a finding that DeFalco was informing the employees
that he was in charge of their destiny and that all pay in-
creases and benefits would flow from him and was encour-
aging the employees to support his position as management’s
representative in its fight against the Union and was threat-
ening dire consequences for those striking employees who
had gotten caught up in the flow of things, thereby threat-
ening the employees with dire consequences if they sup-
ported the Union.
In addition to the foregoing, I have considered the lengthy
testimony by Respondent’s president and other officers, and
former Calhoun Plant Manager Florip, its current Calhoun
Plant Manager DeFalco, concerning the original poor design
of he plant to the Respondent’s needs as an assembly plant
as a result of the configuration of the single assembly line
resulting in bottleneck and work force problems and con-
cerning various other quality and scheduling problems. Al-
though I find that those problems did exist as indicated in
the testimony, I find that they were not the real reason for
the Respondent’s initial hire of over 50 excess strike replace-
ments in January 1986 and its subsequent allowance of the
work force to deteriorate to below prestrike levels without re-
calling any significant numbers of its employees who had en-
gaged in the brief strike in January and who had presented
themselves for unconditional reinstatement and were awaiting
recall, until April 1987 shortly after the filing of new charges
with the Board by the Union.
I also find that the Respondent’s actions in changing to a
labor pool system from what had originally been a system
of assigned positions with designated duties with some lim-
ited transfers and interchange of duties was still another
piece of the scheme to defeat the strikers’ recall rights as Re-
spondent initiated a pool system, downgrading leader posi-
tions and contending it could transfer employees from one
job to another interchangeably, thus allowing it to transfer
employees from one position to another in order to avoid re-
calling strikers. I also find that Respondent’s actions were
discriminatory motivated in arbitrarily assigning returning
strikers to positions and ignoring the returning strikers’ expe-
rience or lack thereof in certain jobs and positions in this re-
call process and adhering to the position that the returning
striker must assume the position dictated by Respondent not-
withstanding difficulties encountered in doing so or inability
to perform the duties as well as the evidence of disparate
treatment of returning strikers such as with the continued as-
signment of Faye Parker and Jerry Holcomb to the
boxmaking job in the pack department despite problems en-
countered in performing this job by these employees and the
issuance of warnings to these employees, the refusal to per-
mit employee James Bold to return to his prestrike job in the
packing department at a time when employee Faye Parker
was encountering difficulty therein and James Bold was ex-
periencing problems in the small motor assembly position
and the refusal of Respondent to let other employees in the
pack department volunteer to handle the boxmaking job to
relieve Parker and Holcomb and the issuance of warnings to
Parker and Holcomb for not meeting a quota in the
boxmaking jobs. I have also considered the direction by Pro-
duction Manager Tetzlaff to nonstriker employee Connie
Davis to work the ‘‘ass off’’ returning striker Reba Cook
who was a union bargaining committee member and chief
steward. The foregoing convinces me that Respondent under-
took to make the return to work intolerable to returning strik-
ers and to make them prove themselves as if they were new
employees on probation to punish them in retaliation for
their engagement in concerted activities on behalf of the
Union and to discourage them from exercising their rights to
return to work in the hope that they would become discour-
aged and quit.
Thus, I find that the Respondent sought the strike with a
preconceived plan to rid itself of the Union and that it imme-
diately seized on the opportunity of the strike to institute
changes in the wages and benefits and institute other changes
as found here and to hire an excess complement of employ-
ees in order to thwart the reinstatement rights of striking em-
ployees, that it manipulated its production needs in order to
assure that only a token amount of strikers would be recalled
until April 1987 shortly after the filing of new charges, that
it retaliated against the strikers by denying their recall rights,
and promotional opportunities and by placing them in posi-
tions for which they were not suited and by subjecting them
to more onerous working conditions and disparate treatment
than other employees who had not engaged in the strike. I
thus find that Respondent violated Section 8(a)(3) and (1) of
the Act by its delay in recalling strikers, by its denial of pro-
motional opportunities of the returning strikers, by its impo-
sition of more onerous working conditions on the returning
strikers, by its misclassification of the returning strikers, and
by the discipline of the returning strikers as found here.
Laidlaw Corp., 171 NLRB 1366 (1968); Fire Alert, 207
NLRB 885, 886 (1973); MCC Pacific Valves, 244 NLRB
1369OUTBOARD MARINE CORP.
931, 933 (1979); Blackberry Creek Trading, 291 NLRB 474
(1988).
M. The Alleged Tainted Recall Procedure
Following the filing of charges by the Union in this case
concerning the Respondent’s failure to recall strikers, the
Union and Respondent’s representative James Miles met to-
gether in the spring of 1987 along with a representative of
Region 10 of the National Labor Relations Board. According
to Miles, the Union and the Board representative insisted that
strikers be first recalled in the order in which their replace-
ments were terminated and thereafter seniority would be
used. This relates to the Respondent’s method of designation
of the new employees hired shortly after the strike prior to
the Union’s offer of reinstatement on behalf of the strikers
as replacements for particular strikers. Employee Relations
Manager John Stoy and Personnel Director Robert Earlie tes-
tified that as new hires were brought in, the new employees
were told by the striking employees on the picket line that
they would only be temporary replacements and in order to
assure them that they were permanent replacements for the
strikers, Earlie and Stoy had them each sign and date a blank
form designating them as permanent replacements and later
filled in the clock number and name of the striker the new
employee was replacing. The excess number of employees
hired in addition to these employees replacing strikers did
not have a clock number assigned to them. The General
Counsel does not contend that recalling strikers in the order
that their designated replacement left the work force was un-
lawful in itself but contends that the Respondent subverted
the Union’s suggestion in order to achieve its unlawful ends
in defeating the Union.
The General Counsel contends that the Union’s commu-
nications addressed only the order that the strikers would be
reinstated but not the jobs to which they would be reinstated
and that the Union specifically objected to any labor pool
concept which would disregard the strikers’ previous experi-
ence. This is borne out by the July 13 and 14 letters of
Union Business Manager Barnes to Plant Manager DeFalco
and Respondent’s attorney and spokesman, Miles. Notwith-
standing the Union’s position, when strikers were recalled
they were placed wherever Respondent decided to place
them without regard to their previous experience on the job
or their prior position. Thus, employees in the pack depart-
ment were placed in upper motor department and employees
in the shine department were placed in the pack department
as examples. Moreover, grade 4 strikers were offered grade
3 assembly positions and at least until July 1987 were not
told they could retain their rights to Grade 4 positions if they
declined a grade 3 position. The Respondent takes the posi-
tion that all the grade 3 positions are substantially equivalent
positions and that it fulfilled its Laidlaw obligations when it
offered the returning strikers grade 3 jobs regardless of
where they were or what they involved. The evidence also
showed that when strikers were recalled they were often not
permitted to give adequate notice to any employer they might
be working for and were required to return almost at once
(i.e., the recall of Faye Parker to pack). In addition Respond-
ent relying on its use of a labor pool concept after the strike
(here found to be unlawful supra in this decision) posted and
accepted bids on grade 4 jobs and transferred its replacement
employees throughout the plant to fill vacancies in positions
rather than recall strikers or allow strikers to bid. As a result
of Respondent’s manipulative conduct in permitting its cur-
rent work force to bid on and transfer to more desirable jobs,
the returning strikers were often given only the less desirable
jobs not withstanding their prior experience and good per-
formance on other jobs. The result was that a number of em-
ployees declined to accept the position offered and did not
return to employment with Respondent. Still others experi-
enced problems with the different jobs in which they were
placed and were disciplined or quit as a result.
Analysis
Based on the foregoing, I find that the recall of strikers
by Respondent was fatally tainted throughout and did not sat-
isfy its Laidlaw obligations. I specifically reject Respondent’s
position that its grade 3 positions were essentially the same
or similar as to constitute substantially equivalent positions.
I further find that Respondent’s recall of the strikers was
grudging as contended by the General Counsel and their ex-
perience was ignored and they were required to stay in jobs
for which they were unsuited even when they experienced
problems with them (i.e., the cases of James Bold, Faye
Parker, Jerry Holcomb, and Patty Densmore discussed infra
and also Richard Hutchins and Jack Holland). Respondent’s
attitude to the returning strikers was to treat them as new
hires who needed to pay their dues and earn their way back
to Respondent’s good graces (i.e., the case of Faye Parker).
Examples of Respondent’s discriminatory treatment of re-
turning strikers (are the comments by Tetzlaff to Davis con-
cerning returning striker Reba Cook and of Tetzlaff and Free
concerning socializing with returned strikers). Moreover,
some returning strikers were disciplined (Parker, Holcomb,
and Bold) and others such as Richard Hutchins and Jack
Holland quit because of their assignment to more arduous
jobs or for which they were not suited.
Under the above circumstances, I find that Respondent did
not satisfy its Laidlaw obligations and that it engaged in dis-
criminatory conduct against the strikers in violation of Sec-
tion 8(a)(3) and (1) of the Act. I have reviewed the indi-
vidual cases cited by Respondent in its brief and perceive no
need for addressing them individually in this decision as my
decision is that those employees who were not returned to
their former positions or substantially equivalent ones as they
became vacant were not properly reinstated. I further find
that Respondent has failed to demonstrate the substantial
equivalency of the various positions. Specifically, I find that
the positions in the pack department were not substantially
equivalent to those in the various assembly departments or
to those in the shine or paint departments and that the posi-
tions in the shine or paint departments were not substantially
similar to each other or to the pack or assembly departments.
Furthermore the evidence demonstrated that there were sub-
stantial differences between positions within departments
(i.e., the V8 line and smaller lines as testified to by
Densmore, box machine and the reader rail in the pack de-
partment). I fully recognize that it may have been difficult
for Respondent to exactly match the strikers’ old job with
those available on his or her return. However, it appears that
Respondent made little or no effort to even come close in
most cases as has been discussed previously. I thus conclude
that Respondent did not satisfy its obligations under Laidlaw
1370 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and has failed to demonstrate that it returned, the strikers to
substantially equivalent positions.
N. The Reprimand of Connie Davis and Her
Subsequent Job Assignments
Connie Davis has been employed by Respondent since
February 1984. She worked on the V8 rope line. She did not
go out on strike with the other employees in January 1986.
The record establishes that Connie Davis was a well-re-
garded experienced employee who had been called on in the
past to serve as a floor inspector and to train other employ-
ees. She had also occasionally relieved on other jobs as re-
quired. As set out above Davis incurred the displeasure of
Production Manager Tetzlaff when she ignored his direction
to ‘‘work the ass off’’ returning striker Reba Cook and in-
stead commenced taking breaks with her and when she re-
ported a prank by employee Jerry Holt who put an enlarged
copy of the Respondent’s antiunion policy in its handbook at
Cook’s work station. On July 16, 1987, Supervisor Todd
Nicholas announced several changes in assignments. He
placed Tammy Owens, who was regarded as one of the fast-
est workers, in the first position occupied by Davis on the
2-cylinder rope motor line next to Reba Cook who was in
the position which permitted Owens to set the pace on that
line and increase the line speed. He also placed Davis in the
second position on the 2-cylinder electric motor line which
according to the testimony of Davis and her sister Louise
Hurt was overloaded and difficult to keep up with. Davis
protested loud and clear to Nicholas who told the employees
that it was Tetzlaff’s decision. He also told Davis that he had
a purpose for this. Davis failed to meet the required 75-per-
cent standard which was 10 motors per day on the first 2
days of her assignment to the job and was monitored by En-
gineers James Hays and David Burns on the second day who
reported that she was banging things around and appeared to
be angry. Davis was then called into the office at the end
of the second day and in the presence of Employee Relations
Manager Stoy given a written reprimand by Supervisor Nich-
olas for failing to reach standard. There had been no verbal
counseling of Davis prior to this. Davis’ and her sister Lou-
ise Hurt testified at length concerning Davis recurring habit
of speaking in anger to Supervisor Nicholas if she was un-
happy with an assignment or problem and that she would do
the work and apologize to him. Davis relationship with Nich-
olas was an open one where she spoke her mind freely as
did Nicholas. This was the first discipline ever for Davis al-
though she had on prior occasions failed to meet the required
production standards, as had other employees assigned to the
electrical line. On the following day Davis met the produc-
tion standard and asked Nicholas to retract the warning. He
checked with his superiors and reported that the warning
would not be retracted. Shortly after this date Davis was
asked whether she would be willing to build pumpers and
agreed to do so but has since been moved on an almost daily
basis. The General Counsel contends that this movement of
Davis because the issuance of the warning is also discrimina-
tory.
The Respondent presented evidence through the testimony
of Todd Nicholas that there was a need to increase the speed
of the electric rope line as a greater demand for these motors
was anticipated and that Tammy Owens was therefore as-
signed to the first position on that line to increase the pace
and production in place of Connie Davis as Tammy Owens
was one of the fastest workers. Davis was assigned to the
second position on the electric line where Owens had been
in first position and Patty Densmore had been in the second
position. Davis expressed her displeasure and, according to
the testimony of Nicholas, Tetzlaff, and Engineers James
Hays and David Burns who observed her on July 16 and 17,
Davis did not meet her production standard of 10 motors be-
cause she was angry and her movements were thus jerky and
this slowed down her production. Respondent contends that
there is little difference between the building of motors on
the rope and electric lines and that Davis should have been
able to reach the required minimum 75 percent of standard
shortly after being assigned there but failed to do so as a re-
sult of her anger and resultant lack of coordinated effort. Re-
spondent also contends that the alleged statements by Free
and Tetzlaff concerning her getting too close with the Union
were vague and remote in time as they occurred over 2
months prior to the July incident. Respondent also contends
that the allegation concerning discriminatory movement of
Davis is without merit as Davis agreed to the assignment of
the pumper motors but because of their erratic receipt from
the Respondent’s Burnesville, North Carolina facility in lots
of 100 per shipment rather than on a daily basis, it has had
to assign Saturday work to meet the production schedule for
these motors and has not been able to keep Davis on this job
full time as originally anticipated and has thus used her with-
in the department as required on other positions.
Analysis
I find the General Counsel has established a prima facie
case of a violation of Section 8(a)(3) and (1) of the Act by
the issuance of the written warning to Davis by Respondents.
Initially I have credited Davis concerning the comments
made to her by Supervisor Greg Free and Production Man-
ager Tetzlaff concerning their perception of her support of
the strikers and Union by reason of her association with re-
turning strikers and by reason of her defense of Reba Cook
from the antiunion prank by employee Jerry Holt. The timing
of the issuance of the warning to Davis after only her second
day on the job as well as the unrebutted testimony of Davis
and her sister Louise Hurt, whom I credit, that certain lines
had failed to meet production standards in the past and that
employees had been moved to other jobs for which they
were better suited and were not disciplined for failing to
meet production standards are evidence of disparate treat-
ment. Additionally, the issuance of the written warning with-
out any prior verbal warning, given the previous openness
between Supervisor Nicholas and Davis wherein each spoke
their minds about problems is a noteworthy change in the re-
lationship between Nicholas and Davis. Additionally the as-
signment of Tammy Owens, one of the fastest employees in
building the motors, to the first position on the 2-cycle rope
motor line put her in the position to speed up Reba Cook
and ‘‘work her ass off’’ which Davis had declined to do as
originally requested by Tetzlaff.
I find that Respondent has not rebutted the prima facie
case of a violation by evidence presented by its engineers,
James Hays and David Burns, that Davis was making erratic
moves and letting equipment snap back into place causing
tangled lines and that Davis appeared angry, although this
evidence was bolstered by the testimony of Nicholas and of
1371OUTBOARD MARINE CORP.
Davis herself who testified that she was angry with her reas-
signment to the second position on the electric line. Initially
I find that the movement of Tammy Owens to Davis’ place
on the line was discriminatorly motivated by Tetzlaff’s desire
to ‘‘work the ass off’’ Reba Cook. I also find that Davis’
movement to the electric line was inextricably enterwined
with the move of Owens to Davis place on the rope line and
that any discipline received by Davis (and particularly the
warning in question) flowed from this act of disparate treat-
ment exercised against Reba Cook, and the warning to Davis
was thus a violation of the Act. I thus find that Respondent
has not rebutted the prima facie case of a violation of the
Act by the preponderance of the evidence and has not dem-
onstrated it would have issued the warning to Davis even in
the absence of her engagement in protected activities by as-
sociation with former striking employees and by her defense
of employee Reba Cook from the antiunion pranks of em-
ploye Jerry Holt. Wright Line, 251 NLRB 1083 (1980).
I further find that the General Counsel has not established
a prima facie case of a violation of the Act by its assignment
of Davis to the pumpers and her movement from job to job
as a result of the erratic supply of the pumpers from the
Burnesville facility and in light of Davis’ own testimony that
she had agreed to build the pumpers and had not filed a
charge concerning these assignments. I accordingly will rec-
ommend dismissal of the allegation concerning the assign-
ment of Davis to a number of different jobs thereafter.
O. The Written Warning Issued to Employee
Patty Densmore
Patty Densmore was one of five employees originally
hired by Respondent in August 1983 during its startup phase
of the Calhoun Plant. She worked on several motors includ-
ing the 2-cycle motor, V6’s and pumpers and on two occa-
sions was called on to work on the V8 motor lines. Prior to
the strike she was a leadperson on the 2-cycle engine line.
She was an experienced employee who had been upgraded
to leadperson and who had been praised by management.
When the strike commenced in January 1986 she participated
in the strike and was on the picket line everyday. She was
recalled to work on May 1 and returned on May 17, 1987.
When she was recalled, she was assigned to work with an-
other employee on the V8 line which was a one-person line.
Ray Rampley, who had been working alone for some time
on the V8 line, was assigned to train her. Within a few days
she was assigned to the V8 line alone. She requested to re-
turn to the 2-cycle motor line, but this request was ignored.
Consistent with Respondent’s unilateral elimination of
leadperson positions, she had not been designated as a
leadperson. However, indicative of her experience as a
leadperson, and Respondent’s need for a leadperson on the
2-cycle line she was required to fill in on that line and to
train new employees but did not receive leadperson pay,
whereas other nonstriking employees received an additional
increment in pay indicative of leadperson status although
they merely worked a station on the line and did not function
as a leadperson. Densmore encountered difficulty in meeting
the minimum 75 percent of standard required by Respondent
which entailed building one V8 motor every seventy minutes
by herself. She testified that the V8 motor is a much larger
motor than the 2-cycle motor thus requiring her to lift and
move heavy parts and that the torque on the airhammers for
the V8 motor is greater than for the smaller 2-cycle motors
which she had previously built. In addition she encountered
parts problems as the kit of parts prepared by kit makers did
not always contain all the parts, requiring her to yell for
parts or to leave the line and to go get the part herself all
resulting in a loss of production time. Her Supervisor Greg
Free observed that she was not making the required min-
imum 75 percent of standard and he and other members of
management met with Densmore and discussed this. Al-
though she requested to return to the 2-cycle line, this re-
quest was denied although other employees were added to
the 2-cycle line. She was observed and a timestudy was
made of her movements by Engineer David Burns in early
June 1987 who observed that she was only performing at
about 60 percent of the standard rate instead of the required
75 percent. Burns concluded that Densmore’s effort was
higher than her production level as a result of looking for
parts in her parts kit, double handling, fumbling, and awk-
wardness with her tools and that the parts kit problems only
accounted for 3 to 4 percent of her lost production. Super-
visor Free made a special effort to stress to the parts chaser
who prepared the parts kit to have all the parts in the kit for
Densmore. Densmore testified she nevertheless encountered
missing parts. The Calhoun Plant was shut down for inven-
tory from June 29 to July 13, 1987. After the shutdown
Densmore was again assigned to the V8 line on her return
on July 13. Supervisor Free issued her a written warning on
July 16 as she had been on the job for 8 weeks and was only
producing at 60 percent.
Analysis
The General Counsel contends that Respondent assigned
Densmore to the heavy and arduous job of working on the
V8 line ignoring her experience on the 2-cycle line and re-
fused to permit her to return to the 2-cycle line or to relieve
her from the V8 line where she was encountering trouble
consistent with its pattern of treating the returning strikers as
new hires and ignoring their requests for transfers to posi-
tions they were experienced with and taking the position that
the assigned job was the only one available with the resultant
placing of employees in jobs for which they were unsuited
or on which they encountered problems, and that this dif-
fered from its treatment of employees in the past wherein
employees were transferred from jobs in which they encoun-
tered difficulty to jobs which they could handle. The Re-
spondent contends that it treated Densmore fairly as her se-
lection as one of the most experienced employees for the V8
line was reasonable and that it worked with Densmore to
achieve the desired production but she failed to do so and
that her warning was consistent with discipline issued to
other employees for failing to meet production levels before
and after the strike. I find that the evidence is manifest that
the Respondent in this case as in others, consistent with its
animus to the recall of strikers and to the strikers on their
return placed the returning strikers in the jobs left over after
nonstriking employees had been assigned to the more desir-
able jobs as the results of Respondent’s unilateral imposition
of the labor pool system and its permitting nonstriking work-
ers to bid on and transfer to jobs as they became open rather
than to recall strikers until the spring of 1987 after charges
had been filed with the National Labor Relations Board al-
leging as unlawful the failure to recall the strikers. Thus, in
1372 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Densmore’s case, her experience on the 2-cycle line was ig-
nored although apparently needed on that line as she was
called in to substitute in training new employees on that line
and her requests to return to that line were ignored even
though openings occurred on the line after her return to work
in May 1987. Although Respondent did assist Densmore in
her efforts to reach the required 75 percent of standard, it is
clear that it took the inflexible position that this was the only
job available for her and ignored its own past practice of
transferring employees from jobs on which they had encoun-
tered problems (i.e., the testimony of Connie Davis, her sister
Louise Hurt, and Densmore). I find that this inflexible posi-
tion of Respondent carried forward to the point of issuing a
written warning to Densmore was the result of Respondent’s
animus toward the strikers, its unlawful recall procedures
which resulted in the placement of returning strikers in jobs
for which they were unsuited and insisting that they perform
at the desired minimum standards rather than transferring
them to jobs at which they were experienced. I thus find that
the General Counsel has made a prima facie case that the
warning issued to Densmore was the result of Respondent’s
animus toward her for her support of the strike and its over-
all pattern of treating returning strikers as new hires who
must prove themselves or pay their dues. I am not convinced
by Respondent’s evidence that it acted out of business neces-
sity in its conduct with respect to Densmore and the issuance
of the warning to her. I thus find that Respondent has failed
to rebut the prima facie case established by the General
Counsel and that Respondent violated Section 8(a)(3) and (1)
of the Act by its issuance of the written warning to
Densmore and by its assignment of more arduous work to
her ignoring her prior experience. Wright Line, supra.
P. The Written Warnings Issued to Employees Dave
Parker and Jerry Holcomb
Glenda Faye Parker and Jerry Holcomb were employed at
the Calhoun Plant prior to the strike. Parker was assigned to
the shine line where the motors are washed and polished and
decals are attached to them; Parker was also a member of
the Union’s organizing committee. At the time of the elec-
tion in December 1984, Parker wore a union button on the
date of the election, and Plant Manager John Florip com-
mented to her, ‘‘So, you decided to go that way, huh.’’ She
replied in the affirmative and Florip said, ‘‘We’ll still be ne-
gotiating a year from now.’’ Holcomb was a Grade 4 tester
and a union steward for the test department in January 1986
when the strike commenced. Both Parker and Holcomb par-
ticipated in the strike and walked the picket line daily. Parker
was recalled to work by a letter dated April 20, 1987, and
returned on April 30, 1987. Holcomb was recalled to work
as a grade 3 assembler employee and returned on May 6,
1987. Holcomb was not advised that he had a right to refuse
the grade 3 position and to await an opening for a Grade 4
position if he chose as Respondent did not commence advis-
ing its Grade 4 employees of their right to decline lower
rated grade 3 positions without waiving their rights to Grade
4 openings until after June 1987. Parker was initially as-
signed to upper motor cover but was reassigned to the pack
department when returning striker Richard Hutchins quit
after being assigned to the boxmaking job in the pack depart-
ment. Holcomb was initially assigned to the boxmaking job
along with Parker on his return. Prior to Parker’s assignment
to the pack department there had never been a woman as-
signed to the boxmaking job in the pack department although
women served as packers in this department. Parker and Hol-
comb encountered problems in meeting the required 75 per-
cent of standard minimum building 25 boxes per hour. Both
employees complained to Brian Harrison, the supervisor in
the pack department on numerous occasions concerning the
demands of the job which requires that they stand on a wood
stand elevated above the floor and lift and put together large
cardboard boxes to be used by the packers. According to
Parker and Holcomb they suffered a great deal of harassment
from Harrison and other management officials as a result of
their failure to meet standard. Parker and Holcomb com-
plained of pain in their feet as a result of the configuration
of the stand and problems with defective boxes. Parker par-
ticularly complained concerning back problems suffered as a
result of working on the boxmaking stand. Both sides in this
case paraded a host of witnesses with the General Counsel’s
witnesses generally stressing the theme that no woman had
ever been assigned the boxmaking job prior thereto, that the
job is more easily handled by a younger person, that the
work is arduous and tedious, and that other employees had
requested to be moved to the boxmaking stand at the same
time that Holcomb and Parker were encountering problems
but were denied the requests. For a brief period Harrison as-
signed Parker to assist an employee who made up owners’
kits in the department and he received favorable reports on
Parker’s performance. As a result of a timestudy, Respondent
determined that two employees were needed in the owners’
kit area and, although Parker had requested to work in this
area, the Supervisor Harrison in fact brought in Edna Mundy
(another returning striker) to work in the job as the opening
occurred on a single day of vacation that Parker was taking.
When Parker returned to work the next day, Harrison de-
cided he could not move Edna Mundy who had been
‘‘trained’’ on the job the single day before. The new em-
ployee subsequently bid on a job in the paint department and
Parker was then slated to be transferred, but Mundy declined
the job in paint and this ended the transfer option for Parker.
The Respondent presented a series of witnesses who gen-
erally testified that the boxmaking job although requiring
physical exertion was not arduous and was not difficult to
learn and that the required minimum 75 percent of standard
was easy to achieve within a short period of time (a day or
so). Employee Tom Petty a young man who is 5 feet 6
inches tall and weighs 120 pounds testified he did not con-
sider the job demanding and easily exceeded the required
minimum standard of 22.5 boxes per hour (which had been
reduced from 25 per hour after a timestudy), but was told
by employee Holcomb with whom he filled in on Parker’s
absence from the job not to exceed the minimum or Re-
spondent would upgrade it. The Respondent also presented
witnesses including Harrison who testified that it made a
number of efforts to improve the situation on the boxmaking
stand for Holcomb and Parker including the making of a
metal attachment for the stand after Holcomb and Parker
complained of problems with their feet as the result of the
job and the timing of Holcomb and Parker by engineers who
found that they were working above the required 75 percent
of standard but that their performance dropped when they
were not being timed. Ultimately Parker and Holcomb re-
ceived two written warnings for not meeting the required 75
1373OUTBOARD MARINE CORP.
percent of standard (22.5 boxes per hour). One warning was
issued to each of them on May 21, 1987, and a final warning
was issued to each of them on June 25, 1987, after which
date they immediately achieved the 75 percent of standard.
During the course of the hearing in this case which spanned
from September to December 1987, Parker was moved in
October 1987 from boxmaking to the owner’s kit area of the
pack department after Mundy bid out of the department.
Analysis
After a review of all the foregoing and the record as a
whole I conclude that the General Counsel has made a prima
facie case of a violation of the Act by Respondent by the
continued assignment of Parker and Holcomb to the
boxmaking job and by its issuance of the two warning letters
to Holcomb and Parker. Initially I find that the original as-
signment of Holcomb and Parker resulted from Respondent’s
overall pattern of placing the experienced returning strikers
in beginning or undesirable positions and ignoring their ex-
perience and requiring them to pay their dues. When employ-
ees encountered problems on the new jobs they were told
this was the only job available to them and their requests to
transfer, which had previously been honored before the
strike, were now rebuffed, and they were harassed to produce
at the Respondent’s standard or were disciplined if they did
not. I was impressed by Parker’s detailed testimony and be-
lieve that management was well aware she was encountering
physical problems as result of her assignment to this job.
However, it appeared that management’s attitude was one of
determination to punish the strikers and particularly those
who had been active in their support of the Union as Parker
and Holcomb were. As the General Counsel points out in its
brief, management was aware of Parker’s complaint as a re-
sult of a charge filed at the same time it was refusing to
transfer another strike returnee James Bold to his old job as
a boxmaker in the pack department. It appears to me that
management was content to suffer the consequences of fore-
going the experience of returning strikers in their positions
at the time of the strike and required them to adapt to wher-
ever it chose to put them or suffer the consequences of dis-
cipline related to their inability to adapt to the new position.
I was not convinced of management’s sincerity in its efforts
to alleviate certain problems for Parker and Holcomb but
rather found these efforts to be tempered by its motivation
to appear reasonable while continuing its efforts to punish
the returning strikers or encourage them to quit. I do not
consider Parker’s and Holcomb’s ability to perform up to
and above the required minimum of standard while under the
scrutiny of the timestudy to require a finding that they were
faking their problems with the box stand or were consistently
able to meet the required minimum unimpeded by physical
problems. It appears to me that the boxmaking job is a phys-
ically demanding job (i.e., the requirement of standing on an
elevated platform lifting and folding heavy cardboard boxes
at a set pace) that may be performed with ease by persons
who are in adequate physical condition but is nonetheless an
arduous job that may cause physical problems for others. I
find that management’s intransigent position that this was the
only opening for Holcomb, an experienced Grade 4 test em-
ployee, and Parker, also an experienced employee, and its re-
fusal to transfer them notwithstanding their requests and the
offer of other employees to take over the boxmaking task
(i.e., Teems) is indicative of this resolve to punish the return-
ing strikers and make them pay their dues. There may have
been some testing of the wills between Holcomb and Parker
and Respondent’s management. However, I find it was the
result of Respondent’s cavalier discrimination against Parker
and Holcomb. Respondent’s assertion that it could not trans-
fer Parker to the original opening of a second position in the
owner’s kit area of the pack department because a new em-
ployee (Mundy) had been assigned to this position and was
trained for all of 1 day is without merit. In sum I find that
the Respondent has not rebutted the General Counsel’s prima
facie case, and I find that Respondent violated Section
8(a)(3) and (1) of the Act by the assignment of arduous tasks
to Holcomb and Parker and by the issuance of written warn-
ings to them because of their failure to meet Respondent’s
production requirements because of their engagement in pro-
tected concerted activities in striking the employer and be-
cause of their support of the Union, Wright Line, supra.
Q. The Discharge of Employee James Bold
James Bold was initially hired by Respondent in 1984 and
worked in a department designated as lower unit until about
a month and a half before the strike in January 1986 when
he was transferred to the pack department. He had apparently
performed satisfactorily in these departments. On August 17,
1987, Bold was recalled to work and assigned to powerhead
to assemble VROs (fuel pumps) and carburetors on the V6
motor line and was supervised by Greg Free. He was re-
quired to assemble 10 VROs per hour or 14-1/2 carburetors
and to thus keep the five station V6 production line supplied
with VROs and carburetors. As the V6 production line is set
up with 5 stations, five motors per hour are the required
standard. It is necessary that the person assigned to assemble
five VROs and five carburetors per hour does so in order to
keep the V6 line running. As a result of Bold’s failure to
build the required amount of VROs and carburetors, his Su-
pervisor Greg Free was repeatedly required to move other
employees to assist Bold in building the VROs and carbu-
retors. On August 18, Free requested a study of Bold’s as-
sembly methods and Engineer Terry Stewart spent 3-1/2
hours observing Bold and offering Bold suggestions for im-
proving his performance, including arrangement of the sta-
tion and sequence of the assembly process. On the following
day, Bold assembled enough VROs and carburetors to keep
the assembly line supplied and running. Thereafter his pro-
duction deteriorated and on August 20, 21, and 24 produc-
tion on the V6 line was stopped as a result of Bold’s failure
to keep the line supplied with VROs and carburetors. On Au-
gust 21, Plant Manager DeFalco received a complaint from
three of the women on the V6 production line concerning
Bold’s offensive body odor and went to Bold on the plant
floor and asked Bold if he had the correct tools and parts
and whether he could do anything to help him. Bold indi-
cated he had everything he needed and that his performance
would improve. DeFalco also told Bold to clean himself up
as the result of the complaints concerning his body odor. On
August 24, Free again requested assistance from the engi-
neering department and Engineer David Burns was sent to
observe Bold and observed the same sequencing problems
that had been observed by Engineer Terry Stewart. Burns
again instructed Bold on proper sequencing and concluded
that Bold’s major problem was that he was not putting forth
1374 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a sufficient amount of effort to adequately perform his job.
As a result of the foregoing, Free issued Bold a verbal warn-
ing on August 24. Bold failed to meet the production stand-
ard for the next 3 days and was issued a final warning by
Free on August 26. Bold requested a transfer which was de-
nied. The V6 line was shut down on August 27 and Free told
Bold to continue to work at his station to give him the op-
portunity to get ahead on his work. Bold assembled 24 car-
buretors that day. The next day the V6 line was started up
again but Bold was unable to assemble sufficient VROs to
keep the line running. Free then met with his supervisor,
Tetzlaff, and DeFalco also became involved and subse-
quently at 9 a.m. that morning Free and DeFalco met with
Bold in DeFalco’s office. DeFalco told Bold there was a se-
rious problem with his work and asked if there was anything
he could do to help him and Bold replied in the negative.
DeFalco asked Bold whether there were any jobs he could
do and Bold asked to work in the lower unit but was told
by DeFalco that the lower unit had been eliminated. Bold
then asked to be transferred to the pack department and was
told there were no openings in pack. DeFalco again asked
Bold whether there was anything he could do to help Bold
reach his production rate and Bold said there was not. By
the end of the day, Bold’s production was only 44 percent
rather than the 75 percent of standard and he was terminated
by Free at the end of the shift.
Analysis
I find that the General Counsel has established a prima
facie case of a violation of the Act by the issuance of warn-
ings and discharge of Bold by Respondent. Initially, there is
ample evidence of Respondent’s animus toward the strikers
because of their engagement in protected activities by strik-
ing, I also find disparate treatment of Bold in this case. Ini-
tially, he was not placed in the pack department where he
had worked prior to the strike. Although he certainly was not
placed in an onerous or difficult position as his particular sta-
tion had been previously used to give employees light work
when they were unable to perform regular duties, it was ob-
viously a position for which he was ill suited. Bold testified
that because of his thick fingers he found it difficult to per-
form this type of assembly work. Although other employees
may have performed this job with ease, Bold apparently was
ill suited to it and encountered difficulties in performing it.
Although the evidence appears overwhelming that Bold’s
failure to meet the production standard was dismal even with
a large measure of help from Respondent’s engineers and the
assignment of other employees to help Bold, I do not find
the evidence presented by Respondent to be sufficiently con-
vincing to justify the conclusion that Bold’s failure to make
standard was the result of a willful lack of effort on his part.
Rather I find that the evidence of past practice of moving
employees from jobs on which they encountered difficulty
prior to the strike and its refusal to move Bold to another
job in pack at the same time that Parker was experiencing
difficulty in the pack department and had asked to be moved
convinces me that Respondent discriminated against Bold by
exercising disparate treatment against him because of his
support of the strike. I find Bold’s body odor problem to be
a nonissue in this case as it was by Respondent’s admission
not relied on by Respondent for its issuance of the warnings
to Bold and for its discharge of him.
I also conclude that the assembly of VROs and carburetors
was not substantially equivalent to Bold’s job in the pack de-
partment and that Bold was not properly reinstated so as to
satisfy Respondent’s Laidlaw obligation. Under the above
circumstances, I find that the General Counsel has estab-
lished Respondent violated Section 8(a)(3) and (1) of the Act
by its failure to properly reinstate Bold to his prior position
in pack as openings occurred and that he is entitled to be of-
fered his old position in the pack department or one substan-
tially equivalent thereto and that Respondent violated Section
8(a)(3) and (1) of the Act by its issuance of the warnings
to Bold and by its discharge of Bold. Implicit in this finding
is a finding that the General Counsel established a prima
facie case of these violations and that the Respondent failed
to rebut them by a preponderance of the evidence, Laidlaw,
supra; Wright Line, supra.
THE REMEDY
Having found that the Respondent has engaged in viola-
tions of the Act, it will be recommended that Respondent
cease and desist therefrom and take certain affirmative ac-
tions designed to effectuate the purposes and policies of the
Act and post the appropriate notice.
In accordance with my findings that Respondent unlaw-
fully implemented its last proposal in January 1986 and im-
posed various unilateral changes in terms and conditions of
employment, it shall be ordered to rescind these changes in-
cluding its implementation of a labor pool, abolishment of
leadman positions, and pay for leadman duties and elimi-
nation of bargaining unit jobs. In accordance with my find-
ings that Respondent unlawfully withdrew recognition from
the Union following the expiration of the collective-bar-
gaining agreement, I shall order Respondent to rescind its
withdrawal of recognition and to recognize and bargain with
the Union on request and to rescind all unilateral changes
following its withdrawal of recognition its direct dealing with
its unit employees and subsequent imposition of a new at-
tendance policy, its removal of the union bulletin board, and
the insertion of an antiunion clause in its personnel manual.
I shall also order Respondent to make any and all payments
that would otherwise have been due under the terms of the
expired labor agreement. The Board does not require that
employees suffer the loss of wages and or improvements in
benefits or the addition of new benefits under circumstances
such as these and I, accordingly, do not recommend that the
increases in wages and improvements in benefits or the addi-
tion of new benefits by Respondent on or after its implemen-
tation of its proposal in January 1986 or after the expiration
of the collective-bargaining agreement in January 1987 be re-
scinded.
I also recommend that the strikers be made whole with
backpay with interest for all loss of wages and benefits sus-
tained by them as a result of the delay in recalling them or
as the result of the unlawful method and procedures of recall
and or the result of any lack of acceptance by them of a po-
sition offered to them which was not substantially equivalent
to their former position or as the result of any discipline in-
cluding suspension or discharge or as the result of any quit
by the employee as a result of his placement on a job that
was not substantially equivalent to his former position. I fur-
1375OUTBOARD MARINE CORP.
7 Interest on and after January 1, 1987, shall be computed at the
‘‘short-term Federal rate’’ for the underpayment of taxes as set out
in the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts ac-
crued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.C. § 6621), shall be computed in accordance
with Florida Steel Corp., 231 NLRB 651 (1977).
ther recommend that all discipline of strikers as a result of
problems with their work performance associated with a new
job to which they were returned that was not substantially
equivalent be rescinded and that Respondent expunge from
its files any reference to the discipline and inform the em-
ployees in writing thereof and the employees be reinstated to
their positions prior to the strike or to a substantially equiva-
lent one if their former position no longer exists. I do not
recommend the displacement of any striker currently on a job
to accomplish this.
Respondent’s withdrawal of recognition and refusal to bar-
gain, as found above, constituted a complete rejection of the
Union and of their employees’ rights to representation for
purposes of collective bargaining. Further the numerous un-
fair labor practices committed by Respondent in its unlawful
scheme to defeat the Union were pervasive in disregard of
the rights of the employees under the Act. I, accordingly,
recommend that a broad order be issued to Respondent re-
quiring it to cease and desist from violating the Act in any
other manner. Hickmott Foods, 242 NLRB 1357 (1979). I
also recommend that Respondents be ordered to preserve and
make available to the Board or its agents, on request, for in-
spection and copying, all records necessary to determine the
payments due and owing by Respondent under the terms of
this Order, and to ensure that Respondent has otherwise com-
plied with the terms of this Order.
It is further recommended that the employees be made
whole with interest for all loss of earnings and benefits suf-
fered by any employees of the Respondent by reason of the
Respondent’s imposition of unilateral changes in the terms
and conditions of employment of its employees and by rea-
son of Respondent’s withdrawal of recognition from the
Union and refusal to bargain with the Union, as found above.
This shall be computed in accordance with backpay for any
loss of earnings and benefits suffered by any of the striking
employees by reason of Respondent’s delay in recalling the
employees who went out on strike after their unconditional
offer to return to work and by Respondent’s unlawful recall
procedures and by employees who suffered specific acts of
discrimination such as James Bold and shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289
(1950). Interest shall be computed in the manner prescribed
in New Horizons for the Retarded, 283 NLRB 1173 (1987).7
I do not recommend a visitatorial order as requested by the
General Counsel. See Cherokee Marine Terminal, 287 NLRB
1080 (1988).
I further recommend that Respondent restore the status
quo ante to January 15, 1986, until the Respondent has, on
request, bargained with the Union and reached agreement or
a valid impasse and that the initial date of union certification
be treated as beginning on the date this Order is complied
with.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The unfair labor practices as found here in section IV,
above, in connection with the business of Respondent as
found in section I, above, have a close, intimate, and sub-
stantial relationship to trade, traffic, and commerce among
the several States and tend to lead to labor disputes obstruct-
ing the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The appropriate unit is all production and maintenance
employees employed by Respondent at its factory at 100 Ma-
rine Drive, Calhoun, Georgia, including all shipping and re-
ceiving employees and plant clerical employees, but exclud-
ing all office clerical employees, salesmen, professional em-
ployees, guards and supervisors as defined in the Act.
4. Respondent violated Section 8(a)(1) of the Act by
threats made to employees Ty Bramlett and Molly Evans, by
its supervisor, Dick Andrews, in November 1984 that upper
management suspected that employee Larry Mulkey was
talking about a union and was looking at ways to terminate
him.
5. Respondent violated Section 8(a)(1) of the Act by
threats of plant closure issued by its manufacturing manager,
Ronald Tetzlaff, to employee Connie Davis during the period
prior to the election in November 1984.
6. Respondent violated Section 8(a)(1) of the Act by
threats of plant closure made by its supervisor, Greg Free,
in March and April 1985 to employee Connie Davis.
7. Respondent violated Section 8(a)(1) of the Act by
threats of plant closure made by its supervisor, Mark Dunn,
to employees Richard Hutchins, Ray Moore, and Julius Sex-
ton in November 1984.
8. Respondent violated Section 8(a)(1) of the Act by the
interrogation incorporated with a promise of a benefit of em-
ployee Julius Sexton by Supervisor Greg Free around the
first of April 1985.
9. Respondent violated Section 8(a)(1) of the Act by the
threats of futility of the employees’ support for the Union
made by Plant Manager John Florip on election day to em-
ployees Richard Hutchins and Faye Parker.
10. Respondent violated Section 8(a)(1) of the Act by the
threat to employees around the first of November 1985 by
its supervisor, Steve Fowler, with the futility of their support
for the Union and their engagement in a strike and with the
loss of their jobs if they went on strike.
11. Respondent violated Section 8(a)(1) of the Act by the
threat of plant closure and loss of their jobs issued by Pro-
duction Manager Ronald Tetzlaff about a month before the
strike to employees if they went on strike.
12. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Supervisor George Hutchinson a few weeks
before the strike to employee Connie Davis that the plant
would be closed if the employees went on strike.
13. Respondent violated Section 8(a)(1) of the Act by the
threats issued by Production Manager Terry Fulmer after the
election to employee Glenda Sue Purvis that if the employ-
1376 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ees went on strike, they would have trouble getting jobs in
the Calhoun, Georgia area or surrounding areas.
14. Respondent violated Section 8(a)(1) of the Act by the
threat of futility issued by Supervisor Howard Gallman in
December 1985 to employees Reba Cook and Evelyn King
that the Respondent would never enter into a labor agree-
ment.
15. Respondent violated Section 8(a)(1) of the Act by the
promise of a good supervisory position made to Chief Union
Steward Ray Moore in December 1985 by Production Man-
ager Fulmer if Moore agreed to help Fulmer get rid of the
Union.
16. Respondent violated Section 8(a)(1) of the Act by the
threats issued to employee Jack Holland by Plant Manager
John Florip in December 1985 concerning the futility of the
employees’ support for the Union as the employees would
never get a contract and that if the employees struck they
would lose their jobs and would never work again in Gordon
County, Georgia.
17. Respondent violated Section 8(a)(1) of the Act by the
threat of futility of the employees’ support of the Union
issued by Production Manager Terry Fulmer in early January
1986 to employee Reba Cook when he told her the Respond-
ent would not give the employees a contract.
18. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Supervisor Howard Gallman about a week
before the strike to employee Eunice Darlene Rayburn that
she would lose her job and benefits and that Respondent
would give her a bad recommendation if she went on strike.
19. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Supervisor George Hutchinson shortly prior
to the strike to employee Eunice Darlene Rayburn that if she
went out on strike she would lose her job and benefits and
that Respondent was going to get the Union out of the State
of Georgia.
20. Respondent did not violate the Act by the responses
by Supervisor Howard Gallman to inquiries by Eunice Dar-
lene Rayburn as to pay and benefits she would receive if she
returned while on strike.
21. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Supervisor George Hutchinson shortly after
the strike commenced to employee Eunice Darlene Rayburn
that Respondent did not want anyone with a union card in
response to her inquiry about returning to work during the
strike.
22. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Plant Manager John Florip in January 1986
to Chief Steward and employee Ray Moore on the picket line
that it would be ‘‘a cold day in hell’’ before the employees
got a contract.
23. Respondent violated Section 8(a)(1) of the Act by the
threat issued by Supervisor Bo Harris in February 1986 to
employee Evelyn King not to count on being recalled as the
Respondent had hired 50 extra employees to replace the
striking employees.
24. Respondent violated Section 8(a)(1) of the Act by the
interrogation and implied threats by Supervisor Todd Nich-
olas of employee Nancy Cochran in October 1986 con-
cerning the signing of a decertification petition.
25. Respondent violated Section 8(a)(1) of the Act by
threats issued by Plant Manager Sam DeFalco by telling the
employees at the September 1986 ‘‘Luncheon with Sam’’
meeting that he could not hire employees at present although
he could sell all the motors he could build and that he would
not hire any more employees until the recall list was over
in January and that he would only look at a few strikers in
January and by DeFalco’s comments that the work force at
the unionized plant up North had been reduced and that he
did not think a new contract would be signed at that plant.
Respondent also violated Section 8(a)(1) of the Act by
DeFalco’s comments that other plants’ employees were get-
ting raises but Calhoun plant employees would not get a
raise as there was a ‘‘third party’’ (the Union) which con-
stituted a promise of benefits if the employees got rid of the
Union.
26. Respondent violated Section 8(a)(1) of the Act by the
threats issued by Plant Manager DeFalco in January 1987
that the Calhoun plant would stay union free which were de-
signed to convey the message that it was futile to support the
Union.
27. Respondent violated Section 8(a)(1) of the Act by the
direction issued by Production Manager Ronald Tetzlaff in
April 1987 to employee Connie Davis to impose onerous
working conditions on employee Reba Cook because of her
engagement in the strike.
28. Respondent violated Section 8(a)(1) of the Act by the
comment by Production Manager Ronald Tetzlaff in May
1987 to employee Reba Cook that he would take care of em-
ployee Connie Davis which was a threat of unspecified re-
prisal against Davis because of her concerted activity in de-
fending her fellow employee Reba Cook from harassment
because of Cook’s union activities.
29. Respondent violated Section 8(a)(1) of the Act by the
threat of an unspecified reprisal issued by Supervisor Greg
Free to employee Connie Davis to be careful about her asso-
ciation with union supporters as some members of manage-
ment thought she was being swayed by the Union.
30. Respondent violated Section 8(a)(1) of the Act by the
threat of unspecified reprisal made by Production Manager
Ronald Tetzlaff to employee Connie Davis in retaliation for
her concerted activities.
31. There was no impasse in bargaining on January 15,
1986.
32. Respondent violated Section 8(a)(5) and (1) of the Act
by its unilateral advertising and implementation of wage and
benefit increases in January 1986.
33. Respondent violated Section 8(a)(5) and (1) of the Act
by its refusal to bargain with respect to training employees
for the peer review appeals panel.
34. Respondent violated Section 8(a)(5) and (1) of the Act
by its unilateral elimination of leadpersons’ duties and pay
and inspectors and other positions without bargaining these
changes with the Union. Respondent also violated Section
8(a)(3) and (1) of the Act by its disparate treatment of re-
turning strikers with respect to leadpersons’ duties and pay.
35. Respondent violated Section 8(a)(5), (3), and (1) of the
Act by its institution of a labor pool policy.
36. Respondent violated Section 8(a)(5) and (1) of the Act
by its withdrawal of recognition from the Union and its im-
plementation of additional unilateral changes in wages and
benefits, engaging in direct dealing with its employees there-
by passing the Union, concerning the attendance policy, and
by implementing unilaterally a new attendance policy and
violated Section 8(a)(3), (5), and (1) of the Act by its unilat-
1377OUTBOARD MARINE CORP.
eral change of its overtime policy, and by its removal of the
Union’s bulletin Board and the insertion of the antiunion pol-
icy in its personnel manual and failing and refusing to abide
by the terms of its expired labor agreement.
37. Respondent violated Section 8(a)(3) and (1) of the Act
by hiring excess replacement employees and by its refusal
and delay in recalling strikers and its method of recall of
strikers.
38. Respondent violated Section 8(a)(3) and (1) of the Act
by its issuance of warnings to employees Connie Davis,
Patty Densmore, Glenda Faye Parker, Jerry Holcomb, and
James Bold; by its imposition of more onerous work on em-
ployees Patty Densmore, Glenda Faye Parker, and Jerry Hol-
comb; and by its discharge of employee James Bold.
39. The settlement agreements in Cases 10–CA–20636 and
10–CA–21564 were properly set aside by the Regional Di-
rector.
40. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
[Recommended Order omitted from publication.]