Pierce Governor Co., Inc.

National Labor Relations Board - Board DecisionsApr 3, 1970

181 N.L.R.B. 922 (N.L.R.B. 1970)

922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pierce Governor Company , Inc. and International Union , United Automobile , Aerospace and Agricultural Implement Workers of America, UAW. Case 25-CA-3420 April 3, 1970 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND J ENKINS On December 9, 1969, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that said allegations be dismissed. Thereafter, the General Counsel and Respondent filed exceptions to the Decision and supporting briefs,' and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Pierce Governor Company, Inc., Upland, Indiana, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. The Respondent's request for oral argument is hereby denied, as the record, exceptions, and briefs adequately present the issues and positions of the parties TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner This case, initiated by a charge filed on June 16, 1969 and a complaint issued on July 31, 1969, was tried before me on September 16, 17, and 18, 1969, at Marion, Indiana. The case was originally consolidated with Case 25-RC-3593, involving objections to an election, but the Regional Director on September 15, 1969, granted a request by the Charging Party to withdraw its objections and severed the complaint and representation cases. The complaint alleged that Respondent, Pierce Governor Company, Inc., had violated Section 8(a)(1) and (3) of the National Labor Relations Act, as amended Respondent filed an answer in which it denied the unfair labor practices alleged. Subsequent to the hearing counsel for the General Counsel and for Respondent filed helpful briefs, which have been carefully considered.' Upon the entire record in this case and on the basis of my observation of the demeanor of the witnesses as they testified, I make the following. FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Respondent is a corporation, engaged at Upland, Indiana, in the business of manufacturing, distributing and selling governors, automobile chokes and related products During the 12-month period preceding the issuance of the complaint, which is a representative period, Respondent, in the course of conduct of its business, shipped from its Upland plant to points outside the State and received at its Upland plant from points outside the State materials and products valued in excess of $50,000 Upon the basis of these admitted facts, it is found that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein H. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW (herein called the UAW or the Union), is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES ALLEGED A Issues and Background The issues presented are whether Respondent, through its personnel manager, its president and its attorney, prior to a representation election at its plant on May 29, 1969, made coercive statements to its employees which tended to interfere with their free choice at the polls and whether, following the election, it first reprimanded, then discharged, employee Donald R Cooper because of his union and concerted activities In deciding these issues it is helpful to consider certain background evidence regarding Respondent's past relations with the UAW. For a period of many years prior to 1965 Respondent had carried on its operations at Anderson, Indiana, about 35 miles from its present location in Upland and had dealt with the UAW as the collective bargaining representatives of its employees at Anderson for about 20 years In connection with 'In addition, Respondent filed a motion to correct the transcript of the record Except in those respects in which the General Counsel has opposed the motion , the motion is granted No finding herein is based upon those portions of the transcript about which there is a dispute as to accuracy 181 NLRB No. 151 PIERCE GOVERNOR COMPANY, INC. negotiations for a new contract, the UAW called a strike at the Anderson plant on November 6, 1964 It was during the course of this strike that Respondent announced its intention to relocate its plant and did construct and relocate it at Upland. As the result of unfair labor practice charges filed by the UAW, the issue as to whether Respondent had refused to bargain over the effect on the Anderson employees of the removal of the plant to Upland was litigated and the Board and Court absolved Respondent from any guilt in this regard.' As the Court pointed out, in affirming the Board's decision in that case, the dilapidated condition of the Anderson plant was so notorious that the UAW had sought a contract provision allowing it to strike over health and safety conditions and Respondent, in recognition of this condition of its plant, had informed the Union in December 1964 that a plant relocation would be "economically advantageous " The Court further held, "That the move was precipitated by legitimate economic reasons and was in no way antiunion is not disputed. This is an important basic factor in the dispute now before us " As found by the Board in that decision, Respondent in December 1964 ceased its efforts to carry on production in the face of the strike and shut down the Anderson plant. It began production in rented quarters in Upland about January 1965 pending the construction of its new plant which was completed in April 1965. Except for one production employee, who had started work at Anderson during the strike, and about 85 percent of its supervisory personnel at Anderson, Respondent had not hired any other Anderson personnel prior to the hearing in March 1966 In June 1965, some employees at Upland took steps to have another union, the United Mine Workers, District 50 (herein called the Mine Workers), represent them. As a result of the discharge of five of these employees, the Mine Workers initiated unfair labor practice charges against Respondent in Case 25-CA-2261, which resulted in a complaint being issued and a hearing held before Trial Examiner Herzel H E Plaine That Trial Examiner issued his decision on April 7, 1966, finding that Respondent had, as alleged in the complaint, discharged these five employees because of their union activities and had promulgated and maintained an unlawfully broad no-solicitation and no-distribution rule. His recommended order required that Respondent reinstate the five discharged employees with backpay and cease promulgating, maintaining or enforcing an unlawful no-solicitation and no-distribution rule Respondent filed no exceptions to the recommended order and complied with its provisions ' Thereafter, pursuant to a representation petition filed by the Mine Workers, an election was held at the Upland plant on November 22, 1968, with both the Mine Workers and the UAW appearing on the ballots Following the filing of timely objections to the conduct of this election, it was set aside and another election was held on May 29, 1969 The Mine Workers withdrew from the contest and only the name of the UAW appeared on the ballots at the second election It is the events just preceding and following the latter election which give rise to the unfair 'The Pierce Governor Company, Inc. 164 NLRB 97, affd sub nom United Automobile Workers v N L R B. 394 F 2d 757 (C A D C ), cert denied 393 U S 831 'Section 10(c) of the Act provides that where no exceptions are filed within 20 days , the Recommended Order shall become the Order of the Board labor practice charges in this case. B Coercive Preelection Statements Attributed to Respondent 's Officials and Counsel 923 Meetings were held by Respondent with its employees on May 6, 15, 21, 27, and 28, to discuss the election scheduled for May 29, and to attempt to persuade the employees to reject representation by the UAW. Certain statements attributed to Respondent's president, Leland E. Boren, and to Respondent's counsel, Donald F. Strutz, at one or more of these meetings, and to Boren at an employee's work station, are alleged to be unlawfully coercive.' 1. Coercive statements attributed to President Boren During the course of the preelection meetings President Boren referred to Respondent's experience at Anderson. He told the employees that Respondent had closed the plant at Anderson because it "couldn't meet the Union demands"; that in demanding so much money, which Respondent could not pay, the Union was placing Respondent in the category of General Motors, that "the Union demanded more than they could do down there, and they just moved it out"; that if the Union won at Upland, he would bargain in good faith with it but that he would not permit Respondent to get in the position it was in at Anderson - that if the Union "made excessive demands," Respondent "might have to close."5 Boren's account of what he told the employees about the Anderson plant was not inconsistent with the employees' account. He testified that although he did not discuss the strike at that plant, he told the employees that "the Union had disallowed us entry into the plant and forced us to close that operation " This explanation, it is noted, is quite different from that given the UAW at the time of the plant closure and removal to Upland Boren did not tell the employees on this occasion what Respondent had told the UAW in 1964 - that Respondent had decided to move because the antiquated and dilapidated condition of its Anderson plant made it economically advantageous to move During the course of these preelection meetings, Boren also told the employees about the recent closing of the Columbus Malleable Iron Company plant in Ohio, a business in which Boren owned a substantial interest. He told his employees that the Columbus plant had been organized for 20 years, that the Company had agreed to the union demands in bargaining with a union there but could not operate economically under the terms agreed upon, had gone bankrupt and had to close the plant He stated that if the UAW won the election at Upland, he would bargain in good faith with it but would not permit Respondent to get into the same position as the Columbus plant by agreeing to economic demands it could not afford. He also stated that he would close the plant before he would agree to union demands which Respondent could not afford to pay and that he hoped Respondent would not have to get into the situation faced at Columbus. He 'Employee Cooper attributed to Personnel Manager Morris a statement at one of these meetings to the effect that the plant would be closed if the Union won the election because Respondent could not afford a union Cooper' s testimony in this respect is not supported by that of any other witness and I credit Morris' denial that he made any such statement 'These findings are based upon the credited testimony of employees Fraze, Cain, Knotts, and Dauenhauer 0 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assured the employees that as cost permitted and inflation decreased, he would continue Respondent's established policy of increasing wages as Respondent was able to pay the increases and stated that the wages that Respondent was then paying were comparable to wages paid by other industries in the community of Respondent's type.6 In a conversation with employee Ronald E. Fraze on May 28, Boren , in similar vein, sought to convince Fraze of the futility of selecting the UAW to represent the employees. According to the undenied and credited testimony of Fraze, Boren sought Fraze out at his work and asked him what he felt a union could get for him. Fraze replied that he wanted, among other things, hospitalization which was 100 percent paid for by Respondent and a cost of living increase. Boren stated that Respondent could not afford that When Fraze responded that a person could hardly afford to work without a cost of living increase, Boren suggested that he should go elsewhere, where higher wages were paid. He told Fraze that Respondent could stand a 3-month strike and that "it would probably come to that if the UAW won" the election Boren concluded the conversation by assuring Fraze that "he wasn't mad at him because of his past union activities "' 2 Coercive statements attributed to Respondent's counsel Respondent's counsel, Strut2, was one of the principal speakers at the pre-election meetings with Respondent's employees in May That he was acting as Respondent's agent in making these speeches is not questioned. At one or more of these meetings, he told the employees about two plants which had closed "because of excessive union demands "8 He stated that one of these was a plant in Columbus, Ohio, with which Respondent's president, Boren, was closely associated and that the other was Respondent's Anderson plant which had been moved to Upland In referring to the Union's "unreasonable demands" made at the Columbus plant, he said that the Union there had been "asking and asking and the Company had been giving and giving until they couldn't give [any] more " With respect to the Anderson plant, he stated that Respondent had "moved from Anderson, to Upland, Indiana, to get away from the UAW"; that he preferred the United Mine Workers or any other union to the UAW; that the UAW "was out to get Pierce," apparently because of Respondent's failure to transfer the Anderson employees to Upland, and that the UAW was more interested in having the Anderson employees at Upland than in representing the interests of the Upland employees.' Strutz took six or eight of the new employees on the second shift to dinner shortly before the election and purported to inform them about the past history between the UAW and Respondent. He told them that during the strike at Anderson there had been some violence and threats against management and employees seeking to cross the picket lines and that the plant had moved to Upland "because Mr. Boren could no longer take the pressure and wanted to give a fair . . business to the Upland community where he could hire employees who wanted to work, and were willing to work."," Thus, Strutz, like President Boren, was assigning a different reason for the removal of the Anderson plant to Upland than had been assigned to the UAW at the time of the removal and to the Board later 3 Conclusions regarding the alleged Section 8(a)(1) violations There can be little doubt about the motive of Respondent's representatives in telling the employees just prior to the election about the closing of the Anderson and Columbus plants. It was manifestly for the purpose of causing them to fear that the selection of the UAW as their bargaining representative might cause Respondent to close down the Upland plant too The fact that Respondent's purpose in making these statements was to discourage employees from voting for the UAW does not, of course, necessarily make those statements unlawful An employer has a right under the first amendment to the Constitution and under Section 8(c) of the Act to express his "views, arguments or opinion" so long as such expression contains "no threat of reprisal or force or promise of benefit" which interferes with, restrains or coerces employees in the exercise of their organizational rights. As the Supreme Court recently pointed out in N L R B v. Gissel Packing Company, 395 U.S. 575, 618, the employer "may even make a prediction as to precise effects he believes unionization will have on his company. In such a case, however, the prediction must be carefully phrased on the basis of objective fact to convey an employer's belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization."" In this case, Respondent does not contend that management had already arrived at a decision to close the plant in case of its unionization It preferred to chill 'The above findings are based upon the composite and mutually corroborative testimony of President Boren, Respondent 's counsel , Strutz, and employees Cain, Knotts, Dauenhauer , Meyer , and Honett 'Fraze is one of the five employees found by Trial Examiner Plaine to have been discharged because of his activities in behalf of the Mine Workers in Case 25-CA-2261 and Respondent had reinstated him pursuant to the recommended order in that case 'Strutz also told the employees that Respondent could not then recognize an independent union at the plant because of the pendency of the representation question but that after the election , if the UAW lost and a majority of the employees wanted an independent union, Respondent could then consider recognizing such a union His remarks were in response to a "hot line" question drawn from a box in which employees had been invited to drop questions The question regarding an independent union had first been raised by some of the women employees about 2 1/2 years prior to May 1969 and Strutz had then told them that Respondent could not consider recognizing such a union during the pendency of litigation arising out of the UAW's charge that Respondent was unlawfully refusing to bargain with it I find nothing unlawful in Strutz' remarks on this subject 'The findings in the two preceding paragraphs are based upon the credited testimony of employees Logan, Fraze, Cansler, and Honett, corroborated in some respects by the testimony of Strutz himself Strutz did not speak from any written notes at these meetings with the employees and I am persuaded that his recollection at the hearing about what he told the employees was not on the whole as accurate as that of the employees who heard him and testified regarding his statements Even Respondent's own witnesses , for instance , did not corroborate his testimony that he mentioned to the employees that the Anderson plant was antiquated and costly to operate except under cost-plus contracts with the Government during the war and that this was a factor in Respondent 's inability to meet the Union 's demands at that plant and its decision to move to a modern, efficient plant in Upland I am convinced that he did not mention this to the employees "The findings in the above paragraph are based on the testimony of Honett, a witness called by Respondent "See also the recent decision of the Court of Appeals for the Tenth Circuit in N L R B v Wylie Manufacturing Co, 417 F 2d 192 *-PIERCE GOVERNOR COMPANY, INC. 925 unionism by making a veiled threat or prediction of that consequence should the employees select the UAW. Nor did Respondent present objective facts as to consequences beyond its control which would justify its belief that unionization might result in plant closure. In referring to the plant closure in Anderson and the removal of the plant to Upland, Respondent's representatives told the employees that Respondent had to move its plant in order "to get away from the UAW" because of that union's "unreasonable demands." As disclosed by the Board and Court opinions in the unfair labor practice case arising out of that move (164 NLRB 97 and 394 F 2d 757), Respondent did not assign that reason to the UAW at the time of the removal or to the Board at the unfair labor practice hearing. At that time it took the position that the move to Upland was decided upon because the notoriously dilapidated and antiquated condition of the Anderson plant made it economically advantageous to move to new and modern quarters Thus, Respondent was misrepresenting either in this case or in the prior case the true reason for shutting down the Anderson plant and reopening it in Upland. This inconsistency aside, however, the mere fact that Respondent may have believed the UAW's demands at the Anderson plant were unreasonable did not make the decision to remove the plant beyond Respondent's control. Respondent could instead have refused to grant demands which it considered unreasonable without moving its plant - just as it did in fact refuse union demands made after it moved to Upland, though the Union was continuing its picketing at the Upland plant. Similarly, Respondent's president and its counsel in broaching the subject of the plant closure at Columbus, Ohio (where employees were represented by the Steelworkers Union rather than by the UAW), were seeking to instill fear in the employees that the selection of the UAW to represent them might result in the closing of the the Upland plant and a loss by the employees of their jobs. This veiled threat, or prediction, like that made in referring to the Anderson plant closure, was not based upon Respondent's belief as to demonstrably probable consequences beyond Respondent's control, for it knew that it could always refuse to grant unreasonable union demands Other statements made to the employees by Respondent's representatives - such as that Respondent would not fight any other union as hard as it would the UAW, that the UAW was more interested in maintaining its representative status than representing the Upland employees, that the employees would be wasting their money by paying dues to the UAW and in this connection misrepresenting to the employees that Respondent would purchase for any employee ordering it a 16-inch Admiral TV set for the cost of union dues for 1-year, and the statement that Respondent could afford a 3-month strike and that it would probably come to that if the UAW won the election - while not in themselves found to be unlawfully coercive, are a part of the antiunion context in which the threats or prediction of plant closure or removal were uttered. In this context I find that the employees would reasonably interpret Respondent's predictions as threats of reprisal should the employees select the UAW at the polls. It is accordingly found that Respondent, by making predictions or veiled threats of plant closure or plant removal as a consequence of the selection by the employees of the UAW to represent them, violated Section 8(a)(1) of the Act. C. The Alleged Discrimination against Cooper Donald Cooper was hired by Respondent on November 12, 1966 , as a drill press operator and, except during three temporary layoffs due to reductions in force, remained in Respondent's employ until his discharge on June 12, 1969. After one of these layoffs, apparently the February 1968 one, he returned to work as a stock mover, at a 10 cents an hour reduction in pay, and was performing that type of work when discharged. Respondent contends that Cooper was discharged on June 12 because of insubordination towards Vice President Evans on that day The General Counsel contends that the assigned reason was pretextual and that the real reason was Cooper's outspoken support of the Union and his insistence upon receiving a TV set like one on display at the plant for the price of l year' s union dues, as Respondent had promised at one of the preelection meetings with its employees when trying to drive home the point that the Union dues for 1 year would cost them the price of the TV set. To properly evaluate these contentions, it is necessary to understand something about the character and personality of Cooper as well as the background facts leading to the discharge. From observing his actions and reactions during 3 hearing days and from hearing and observing him and other witnesses testify, one becomes convinced that he should not be and was not judged by the same standards applicable to most employees. He was a fast worker and insofar as his work could be judged separately from his relations with other employees, he was undoubtedly a competent worker. He was, however, headstrong, unruly, fun-loving, tending to be insensitive to the feelings of others and unable to accept criticism without becoming angry or emotionally involved Although minor complaints about him had come to the attention of top management prior to about mid-April 1969 when his then foreman, George Long, died, Long appears to have handled these problems personally without top management officials having to talk to Cooper Long was succeeded by Foreman Garry Schaumleffel. It was Cooper's refusal on May 1, 1969, to obey orders from Schaumleffel which precipitated the series of events about which we are here concerned Although Cooper was under the immediate supervision of Schaumleffel, he also took orders from other supervisors in connection with moving stock or materials from one part of the plant to another. On May 1, he was using the large shipping department forklift truck in removing objects from the assembly department which Foreman Davis had requested him to move, and he refused to release this forklift truck to employee Cain and use a smaller one for his own task, even when ordered by his own foreman, Schaumleffel, to do so. Cooper was summoned to the office of Personnel Director Morris on that occasion and, in the presence of Vice President Evans and Schaumleffel, was reprimanded for his refusal to obey his foreman's orders. He was told that although he could be discharged for refusing to obey such orders, he would be given another chance. He became angry and upset and stated that he was going home for the rest of the day. In his outburst of anger, he told the management representatives, inter alia , "I see we are going to have to get the Union in here yet to save all this extra trouble you are trying to throw on me." Cooper was permitted to go home and was told that he could come back the next day if he wanted to. Foreman Schaumleffel wrote up a warning notice for Cooper on that date charging him with 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD insubordination but, in view of Cooper's emotional state, it was not then delivered to him.' z Cooper returned to work the next day. Nothing further of an unusual nature appears to have happened until about May 28, when,, at one of the preelection meetings held by Respondent with its employees, Cooper challenged a couple of statements made by Attorney Strutz. At one point when Strutz was trying to make the point that employees would be wasting their money by paying union dues, Cooper interrupted to say "What do you mean we'd be wasting it because if the Union don't get it, the Company just gets it." He then told about being given a 10-cent raise in January and having it taken away from him in February after returning from a layoff. At the same meeting, Cooper also challenged Strutz' statement that for the cost of I year' s union dues, Respondent could purchase a 16-inch Admiral TV set like the one on display at the plant Vice President Evans thereupon announced that he would order such a TV set for anyone that ordered it for the cost of a year's union dues." On the next day Cooper, having figured that his dues for l year would be $54 and believing that the Respondent could not buy the TV set even at wholesale for that price, informed Vice President Evans that he wished to order the TV. Evans told him, "Boy, I don't see how you can even talk to me like you did last night and still work here " However, Evans instructed Cooper to transmit this request to Personnel Director Morris Morris told Cooper that the TV set would arrive in about 2 weeks Although Cooper, according to Vice President Evans, again mentioned the TV set about "1500 times," it had not by the date of the hearing been delivered to him ' On June 6, 1969, Cooper was involved in an incident with employee Mary Bridenthal which resulted in a second warning being written and presented to him Bridenthal was employed as a final inspector It was a responsible job and required great concentration. Respondent's standards of quality and precision had been increasing steadily for many months and the final responsibility for seeing that the parts she inspected met the tightened specifications fell on her It was Cooper's duty to bring the parts to be inspected to a place near her work station and to remove the parts from another point after she had inspected them It was not a part of his duties to try to expedite the woi k of the inspectors and it was not necessary, in the course of his duties, for him to even speak to the inspectors Although Cooper had been told by his supervisor on more than one occasion not to bother the inspectors, he persisted from time to time in teasing and laughing at Bridenthal and she would tell him to leave her alone. On the day in question Cooper asked Bridenthal whether certain parts he had brought her were ready to be taken to the heat treat department She was busy inspecting other parts and told him that she had not inspected the parts he referred to because they were not accompanied by paper work showing the number on the parts. He told her the number, then proceeded to the production department and had Foreman Mike Davis "The findings in the above paragraph are based upon the composite and mutually corroborative testimony of Cooper , Cain, Boyd, Schaumleffel, Evans and Morris "The above findings are based upon the uncontroverted testimony of Cooper and Ethel Logan "As the result of Cooper's statement at the meeting that Respondent could not purchase the TV set for the cost of a year's union dues and Evans ' promise that Respondent would purchase such a TV set for anyone ordering one at the stated price , employee Ethel Logan also ordered one She, too, had not received her set by the date of the hearing bring the proper paper work to Bridenthal's work area Cooper, coming up behind Bridenthal as she was concentrating on her inspection, yelled into her ear, "Ho, ho, ho, I told you that was the part number" Bridenthal turned and told him "Shut your g-d mouth." Cooper persisted in taunting her as both became more and more upset Bridenthal left the area and, weeping, told her foreman, Slagle, that something had to be done Both of them reported the matter to Personnel Director Morris, who summoned Cooper to his office and gave him a written warning notice, charging him with "Interfering with the work of other employees on the job." At the same time he was also presented with the warning notice which had been prepared on May 1, but which was not then presented to him because he was so upset and was going home Cooper refused to accept or sign either of these warning slips He maintained that he had done nothing wrong on either occasion and was merely performing his job each time." The conduct for which Cooper was given his second warning slip was, as Bridenthal explained, no different in nature from his conduct on many prior occasions. However, whereas on prior occasions she had been more patient and had tried to handle him as she would have handled one of her children, on June 6, the pressure of her work had built up to such a point that she "went to pieces" when Cooper startled her by yelling in her ears A second warning notice under Respondent's rules normally called for a 2-day layoff but Cooper was told that the layoff would be rescinded if he would stop interfering with the work of other employees There is no basis for inferring that these warning notices were discriminatorily motivated, as the General Counsel appears to contend. Bridenthal was a member of the Union's organizing committee and the sincerity of her motive in making the complaint about Cooper cannot be questioned Respondent's reaction to her complaint as well as its reaction to Cooper's refusal to obey his foreman's orders on May 1, appear to me entirely reasonable and unrelated to any union proclivities on Cooper's part. About a week later, on June 12, as Vice President Evans was passing through the assembly department on the way to his office, Cooper, on a forklift truck, paused in his work of moving tow pans, and yelled at Evans in a loud voice: "Why don't you write me up for doing my job?" Evans approached him and in a low voice asked him to forget what had happened in the past and get on with his job. Cooper then, in an even louder voice, which could be heard by the 25 or 30 people in the area, repeated the same question, with Evans in vain admonishing him again to forget the past and get back to work.1s Evans then went to the personnel office and requested that Personnel Director Morris bring Foreman Schaumleffel into the office and have Cooper fired This was done Cooper was told that he was being discharged for insubordination I am convinced that this was so Throughout the period of Cooper's employment, Respondent appears to have-shown patience and tolerance toward his idiosyncrasies, not only in connection with the incidents related above but also in connection with other misconduct described in the record The incident precipitating his discharge, however, was undoubtedly of a "The above account of what happened on June 6 is based principally upon the credited testimony of Bridenthal, Davis, Schaumleffel , Evans, and Morris, substantiated in material respects by Cooper himself "The findings in the paragraph above are based upon Evans' credited testimony PIERCE GOVERNOR COMPANY , INC. 927 more serious nature from management's point of view. It was one thing for Cooper to be given only a warning on May 1, for his insubordinate refusal to obey the orders of his newly appointed supervisor when Respondent's officials believed that Cooper may not have understood the seriousness of what he had done It was another for him to direct his insolent speech and insubordinate conduct toward the vice president of the Company and in the presence of numerous employees. I believe that in the interest of maintaining order and discipline in the plant, Vice President Evans felt compelled to have Cooper discharged under the circumstances. The fact that Cooper may have shown active support of the Union in pre-election meetings, that he may have pestered Vice President Evans with repeated references to the TV set which Respondent promised but never delivered and that Respondent may have disapproved of Cooper's conduct in these respects, does not immunize him from the discipline which should normally be expected to now from his conduct which was unrelated to any union activity Upon the entire record, I am convinced and find that Respondent discharged Cooper because of his insolent and insubordinate conduct toward Vice President Evans on June 12, and not, as Cooper apparently sincerely believed, because of his insistence on Respondent fulfilling its promise regarding the TV set or because, of his participation in any other union or concerted activity CONCLUSIONS OF LAW 1. By making predictions and veiled threats of plant closure or plant removal as a consequence of the selection by its employees of the UAW to represent them, Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed under Section 7 of the Act, in violation of Section 8(a)(l). 2. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act 3 A preponderance of the evidence does not support the allegations of the complaint that Respondent violated Section 8(a)(3) of the Act by discharging employee Cooper or that it violated Section 8(a)(1) of the Act except in the respects specifically found herein. represent them (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act (a) Post at its plant in Upland, Indiana, copies of the attached notice marked "Appendix " Copies of said notice, on forms provided by the Regional Director for Region 25, after being duly signed by an authorized representative, shall be posted by the Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 25, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith 11 IT IS ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found herein "In the event that no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board's 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 be changed to read "posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " "In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herwith " APPENDIX THE REMEDY It having been found that Respondent engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act, my Recommended Order will require that it cease and desist therefrom and take the usual type of affirmative action required to remedy the unfair labor practices found On the basis of the foregoing findings of fact and conclusions of law and the entire record, there is issued, pursuant to Section 10(c) of the Act the following: RECOMMENDED ORDER Respondent, Pierce Governor Company, Inc., its officers, agents, successors, and assigns, shall: I Cease and desist from: (a) Making predictions and veiled threats of plant closure or plant removal as a consequence of the selection by its employees of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, or any other union to NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board an agency of the United States Government WE WILL NOT make predictions or veiled threats of plant closure or plant removal as a consequence of the selection by our employees of the UAW or any other union to represent them. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their right to select the UAW or any other union to represent them. PIERCE GOVERNOR COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone This notice must remain posted for 60 consecutive days 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from the date of posting and must not be altered, defaced, with its provisions, may be directed to the Board's Office, or covered by any other material 614 ISTA Center, 150 West Market Street, Indianapolis, Any questions concerning this notice or compliance Indiana 46204, Telephone 317-633-8921.