Thorgren Tool & Molding

National Labor Relations Board - Board Decisions

Sep 30, 1993

312 N.L.R.B. 628 (N.L.R.B. 1993)

628
312 NLRB No. 109
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 We shall modify the judge’s recommended Order to add a re-
quirement that the Respondent expunge from its records any ref-
erence to the unlawful discharge of employee Harold Barkley.
2 All subsequent dates are in 1991 unless indicated otherwise.
3 Lockard had received written warnings for poor work perform-
ance on March 21, 1990, and January 18.
4 An essential ingredient of a disparate treatment finding is that
other employees in similar circumstances were treated more leniently
than the alleged discriminatee was treated. See Storer Communica-
tions, 287 NLRB 890, 899–900 (1987) (disparate treatment where
discriminatee’s warning was more severe than warnings issued other
employees). It is conceivable that there are circumstances under
which a suspension could be found more lenient than a denial of
overtime. It would, however, be the General Counsel’s burden to
show those circumstances. On the record in this case, we do not be-
lieve the General Counsel showed that the suspensions of others
constituted more lenient treatment than the denial of overtime to
Lockard.
Thorgren Tool & Molding, Inc. and Local Lodge
1227, District Lodge 72 of the International As-
sociation of Machinists & Aerospace Workers,
AFL–CIO. Cases 25–CA–21263–1, 25–CA–
21263–2, and 25–CA–21428
September 30, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On December 31, 1992, Administrative Law Judge
Karl H. Buschmann issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief
(which is styled a reply brief).
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions as modified and to
adopt the recommended Order as modified.1
The judge found that the Respondent violated the
Act by refusing to allow employee Ricky Lockard to
work overtime because of his union activities. The Re-
spondent excepts to this finding, claiming that it de-
nied Lockard the chance to work overtime because of
his poor workmanship. We find merit in this exception.
In March 1991,2 the Respondent posted a notice of-
fering employees the chance to volunteer for weekend
overtime work. Ricky Lockard volunteered to work
overtime on Friday and Saturday, March 22 and 23.
Tool Room Supervisor Glenn Dowd told Lockard that
on March 21 Lockard had produced some defective
parts and showed him two ‘‘short’’ parts (parts miss-
ing plastic in some places). Dowd gave Lockard a
written warning for poor work performance and told
him he would not be allowed to work overtime be-
cause of the defective work.3
The Respondent’s vice president, Robert Thorgren
Jr., testified that, after Lockard’s March 21 reprimand,
he ordered that Lockard not be assigned overtime work
because he thought it would be ‘‘ludicrous’’ to assign
overtime work to an employee who could not produce
properly on his regular shift.
The judge found that Lockard was the only em-
ployee denied overtime as a means of discipline for in-
ferior work performance. Although the record shows
that the Respondent disciplined three other employees
for poor work performance by suspending them, the
judge concluded that the Respondent’s denial of over-
time constituted disparate treatment of Lockard. We
disagree.
There is no dispute that Lockard’s work perform-
ance was inadequate on March 21 and that he had
been disciplined previously for poor work perform-
ance. Further, the record shows that the Respondent
has disciplined other employees for poor work per-
formance. We can discern in these facts no basis for
the judge’s finding of disparate treatment.4 Therefore,
we conclude that, even assuming the General Counsel
established a prima facie case, the Respondent showed
it would have disciplined Lockard even in the absence
of his union activities. We shall amend the judge’s
conclusions of law and modify his recommended
Order accordingly.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law 5.
‘‘5. By discharging its employee Harold Barkley be-
cause of the Union, the Respondent violated Section
8(a)(3) and (1) of the Act.’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Thorgren Tool & Molding, Inc., Valparaiso, Indiana,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(c).
‘‘(c) Discharging employees because of the Union or
otherwise discriminating against them because of their
union activities.’’
2. Substitute the following for paragraph 2(a) and
reletter the remaining paragraphs accordingly.
‘‘(a) Offer Harold Barkley immediate and full rein-
statement to his former job or, if that job no longer ex-
ists, to a substantially equivalent position without prej-
udice to his seniority or any other rights or privileges
previously enjoyed and make him whole for any loss
of earnings and other benefits suffered as a result of
the discrimination against him in the manner set forth
in the remedy section of the decision.
‘‘(b) Remove from its files any reference to the un-
lawful discharge and notify the employee in writing
629THORGREN TOOL & MOLDING
1 The allegation relating to the Union’s refusal to furnish informa-
tion was withdrawn (Tr. 7). These allegations relating to Sec. 8(a)(1)
and (5) are stricken.
2 The General Counsel’s motion to correct transcript is granted.
that this has been done and that the discharge will not
be used against him in any way.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT threaten our employees with more on-
erous working conditions because of their union activi-
ties or threaten them that we would never reach a col-
lective-bargaining agreement with the Union.
WE WILL NOT post a notice granting increased over-
time or announce other inducements to support the de-
certification effort.
WE WILL NOT discharge employees or otherwise dis-
criminate against them because of their union activi-
ties.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL offer Harold Barkley full and immediate
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position without
prejudice to his seniority and other rights and privi-
leges, and WE WILL make him whole for any loss of
earnings and other benefits he may have suffered by
reason of the discrimination practiced against him,
with interest.
WE WILL notify Harold Barkley that we have re-
moved from our files any reference to his discharge
and that the discharge will not be used against him in
any way.
THORGREN TOOL & MOLDING, INC.
Ann Rybolt, Esq., for the General Counsel.
Sara J. Herrin, Esq., of Chicago, Illinois, for the Employer.
Anna R. Samick, of Valparaiso, Indiana, for the Charging
Party
DECISION
KARL H. BUSCHMANN, Administrative Law Judge. These
cases were tried on February 24 and 25, 1992, in Portage,
Indiana. The charges in Cases 25–CA–21263–1 and 25–CA–
21263–2 and in Case 25–CA–21428 were filed by Local
Lodge 1227, District Lodge 72, International Association of
Machinists and Aerospace Workers, AFL–CIO (the Union),
charging that Thorgren Tool & Molding, Inc. (the Respond-
ent or the Company), has engaged in unfair labor practices.
The complaints, consolidated by order of October 18, 1991,
allege that the Company violated Section 8(a)(1), (3), and (5)
of the National Labor Relations Act (the Act), by (a) dis-
charging Harold Barkley because of his familial ties to a
union supporter; and in order to discourage union support,
(b) threatening employees that the Company would never
reach a collective-bargaining agreement and threatening em-
ployees with more onerous working conditions; (c) refusing
to give Ricky Lockard overtime hours because of his union
activities; (d) granting its employees increased overtime op-
portunities to encourage decertification efforts; and (e) refus-
ing to furnish the Union with certain information.1
The Respondent filed timely answers in which the jurisdic-
tional allegations in the complaint are admitted and in which
the substantive allegations of unfair labor practices are de-
nied.
On the entire record,2 including my observation of the de-
meanor of the witnesses, and after consideration of the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. JURISDICTION
The Respondent, Thorgren Tool & Molding, Inc., is an In-
diana corporation located in Valparaiso, Indiana, where it is
engaged in the manufacture, sale, and distribution of blades
and related items. With sales and shipments from its
Valparaiso, Indiana facility of goods valued in excess of
$50,000 directly to points located outside the State of Indi-
ana, the Respondent is admittedly an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union is admittedly a labor organization within the
meaning of Section 2(5) of the Act.
FACTS
Thorgren Tool & Molding, Inc. is a family enterprise
founded by Robert Thorgren, president, and managed by his
son, Robert Thorgren Jr., vice president. Eleanor Thorgren,
wife of the president, is secretary of the corporation and still
works daily at the plant, although her husband, the president,
only works occasionally and occupies most of his time on his
100-acre farm where he conducts a racehorse operation (Tr.
81).
In February and March 1990, the Union began an organi-
zational campaign among the Company’s approximately 60
production employees (Tr. 110, G.C. Exh. l5). Following the
filing of a petition for an election by the Union, an election
was held on May 9, 1990, in which the Union was elected
as the employees’ bargaining representative. The unit was
certified on May 17, 1990, as follows (G.C. Exh. 3):
All molding department employees, all packing de-
partment employees, all shipping and warehouse depart-
ment employees, all quality control department employ-
ees, and all tool room set-up employees employed by
the Employer at its Valparaiso, Indiana facility;
630 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
BUT EXCLUDING all tool and die maker employees,
all tool and die maker apprentice employees, all office
clerical employees, all professional employees, all
guards and supervisors as defined in the Act.
The Company and the Union began contract negotiations
in August 1990, but failed to reach an agreement. On Feb-
ruary 11, 1991, the Respondent presented its final offer (Tr.
130). Shortly thereafter, certain bargaining unit employees
picketed the plant for about a month (Tr. 130–131). On Feb-
ruary 6, 1991, the Valparaiso newspaper, the Vidette-Mes-
senger, published a detailed article about the pickets at
Thorgren Tool and Molding and prominently displayed the
picture of one of the principal union activists, Rachel Carl-
son, on the picket line (G.C. Exh. 4).
On February 9, 1991, Rachel Carlson’s son-in-law, Harold
Barkley, found a letter in his truck which Robert Thorgren
Sr. had written on yellow legal pad paper to inform Barkley
that he was fired from his job (G.C. Exh. 8). Barkley had
initially worked as a production or maintenance employee at
the Respondent’s plant (Tr. 82). He subsequently divided his
working hours between that job and Thorgren’s horse farm
and finally worked exclusively at the farm for the last 10
years. During that time Barkley remained on the Company’s
payroll (Tr. 84).
The General Counsel submits that Barkley was fired from
his job in retaliation for his mother-in-law’s (Rachel
Carlson’s) union activity. The Respondent’s position is that
Thorgren terminated Barkley’s job at the farm because it was
too expensive to keep him on and he did not want to con-
tinue spending so much money on the horse and racing busi-
ness (R. Br. p. 6).
On March 5, 1991, Jack Beiswanger, a supervisor, ap-
proached Julie Pitt, an employee working as a grinder, and
in an excited and angry manner accused her of sabotaging
the machine. When Pitt replied that she ‘‘didn’t know what
he was talking about,’’ he said the following (Tr. 297):
I will play your fucking union game. You will see
. . . . I will make it so hard for you in here, you won’t
be able to—if you don’t have anything else to do, come
and find me and I will find something for you to do.
The General Counsel argues that this threat of more oner-
ous working conditions violated Section 8(a)(1) of the Act.
The Respondent states that Pitt’s working conditions did not
change, nor was she otherwise disciplined as a result of this
incident and because the supervisor’s reference related to
sabotage and not to the employee’s union activity, no viola-
tion occurred (R. Br. p. 8, 18).
One morning during the middle of March 1991, Supervisor
Beiswanger had a conversation in the warehouse with Mi-
chael Phipps, an employee. Beiswanger told Phipps that he
knew that Julie Pitt and another employee had sabotaged the
machinery. He said that ‘‘people were too tense around the
plant.’’ When Phipps said that ‘‘things would probably calm
down’’ if the employees had a contract, Beiswanger replied
that employees ‘‘wouldn’t get a contract, would probably
never give [them] a contract and [they] would have a hell
of a fight on [their] hands’’ (Tr. 307).
Beiswanger’s statement was unlawful, according to the
General Counsel, because it was coercive and conveyed the
message that bargaining would be futile. The Respondent ar-
gues that the statement contains not a hint of a threat or co-
ercion and was merely an expression of an opinion (R. Br.
p. 19).
In March 1991, the Company posted a sheet permitting
machine operators to volunteer for overtime work on week-
ends (Tr. 279). Employee Ricky Lockard volunteered on ap-
proximately five occasions by writing his name on the posted
sheets (G.C. Exh. 7). Lockard, who was a prominent union
activist was not selected, because Robert Thorgren Jr. had in-
structed his secretary Dianne Shepard ‘‘not to assign him
shifts on the weekend’’ (Tr. 57). Thorgren testified that
Lockard produced bad parts and had received prior warnings
about similar incidents. Accordingly, Lockard received a rep-
rimand and was prevented from overtime work on weekends
(Tr. 57, G.C. Exh. 13). But the General Counsel submits that
Lockard’s union activities were the real reasons behind Re-
spondent’s conduct.
On May 29, 1991, the Respondent posted on its bulletin
board a memorandum from Thorgren Jr. to the employees
notifying them that a petition for decertification of the Union
had been filed with the Board on May 23, 1991. The memo-
randum also stated: ‘‘We hope and expect that an election
will be scheduled in the near future so that you may vote
by secret ballot to decide whether or not you wish to be rep-
resented by Local Lodge 1227 of the IAM’’ (G.C. Exh. 5).
On the same day, the Respondent posted a notice adjacent
to the union notice informing the employees as follows (Tr.
42–44, 144–145):
Due to an unexpected, temporary surge in orders, we
are currently offering overtime before and after shifts
for personnel as machine operators [G.C. Exh. 6, 11].
Yet prior to this time, overtime on such a liberal scale was
not available to the employees since the election in May
1990 (Tr. 279). The only other time when overtime was of-
fered occurred in March 1991 when it was offered on week-
ends. Moreover, employees Rachel Carlson and Julie Pitt tes-
tified that they were familiar with production schedules
which showed the customer’s name, the material, and the
amount of the order. Carlson was also familiar with the
‘‘pink cards’’ which disclosed the due date of the order and
the time the order had to be ready for shipment (Tr. 152–
153, 303–324). According to their testimony, the Company
had not experienced any sudden upsurge in new orders.
Thorgren, on the other hand, testified that the Company ex-
perienced absenteeism and that machines sat idle, he also
stated that he expected several customers to place new or-
ders. Prompted by customer complaints, he decided to make
overtime available (Tr. 71–75).
The General Counsel’s argument that the Respondent’s
offer of overtime was designed to affect the outcome of the
decertification petition is countered by Respondent’s argu-
ment that the simultaneously posted notices were simply a
coincidence and that the Company’s decision was unrelated
to the union notice.
Analysis
Section 8(a)(3) and (1) of the Act prohibits the discrimina-
tory treatment of even a nonunion employee if the employ-
er’s conduct was motivated by antiunion animus. Jack Au-
gust Enterprises, 232 NLRB 881, 900 (1977), enfd. 583 F.2d
631THORGREN TOOL & MOLDING
575 (lst Cir. 1978). Although Harold Barkley had worked on
Thorgren’s horse farm for the last few years, the record
shows that he had remained on the Company’s payroll, re-
ceiving a salary and ‘‘was on the shop benefits too’’ (Tr. 84,
95). Thorgren, in his four-page message to Barkley, listed
these company benefits in great detail for 1990, showing for
example Barkley’s yearly and weekly salary, his vacation
benefits, his pension plan, and an insurance package (G.C.
Exh. 8). Barkley, who began his employment in 1972 as a
maintenance or production worker at the plant, learning all
phases of the business, and who subsequently spent more of
his working hours at Thorgren’s farm until he worked there
exclusively, did not thereby lose his status as an employee.
The reasons for his discharge are indirectly related to the
Union, as demonstrated by Thorgren’s letter generally in-
forming Barkley that he was no longer needed on the farm
and describing in detail his past financial benefits. The letter
refers extensively to Rachel and Toni in several significant
ways. Stating that he ‘‘never said too much about Toni and
Rachel although [he] thought about it a lot but kept [his]
mouth shut,’’ Thorgren continued, ‘‘I can’t figure those peo-
ple you live with out, Toni & Rachel . . . they still seem
filled with hate about something.’’ Thorgren further stated
(G.C. Exh. 8):
Rachel, it seems to me has also been treated fairly
. . . yet she seems determined to destroy the shop. We
operated at a near loss in 1990 and now we have union
people working against us.
The letter clearly shows that Thorgren associated Rachel
Carlson and her daughter Toni with Barkley, they were part
of the same household, and they derived their income from
the Respondent. The letter also showed Thorgren’s antiunion
animus and his opposition to Carlson’s involvement with the
Union. Thorgren’s message was clear; he felt betrayed by
Carlson’s union support and he reacted accordingly.
Carlson’s extensive union support is well documented in
the record. She was the subject of unfair labor practice
charges on July 9, 1990 (G.C. Exh. 9). The charges were set-
tled by an agreement on October 15, 1990 (G.C. Exh. 10).
Subsequently, Carlson served on the union negotiating com-
mittee and participated in the Union’s picketing of the plant
(Tr. 140). Thorgren admitted seeing the report and Carlson’s
picture in the local paper, carrying a sign saying, ‘‘Take Care
of US, WE have Been Taken [sic] Care of YOU’’ (Tr. 101,
G.C. Exh. 4).
Thorgren’s action in drafting the letter—three days follow-
ing the newspaper report—as well as the letter’s content
show that he reacted to the report. The longest portion of his
letter was devoted to a demonstration and an accounting of
the benefits received by Carlson and her daughters in an at-
tempt to show that he had taken care of them. Moreover,
even though Thorgren had frequently complained to Barkley
about Carlson’s union activity, saying that Rachel was a
problem that he couldn’t understand that ‘‘she is organizing
against him’’ after ‘‘everything he had done for her,’’ he did
nothing until the article and Carlson’s picture appeared in the
paper. The timing of Barkley’s discharge, as well as
Thorgren’s explanations in the letter and the surrounding cir-
cumstances clearly show that Thorgren acted—somewhat re-
luctantly—against Barkley in lieu of Carlson who was the
subject of a prior settlement. I, accordingly, find that the
General Counsel has established a prima facie case that the
discharge of Barkley was motivated by Carlson’s union ac-
tivity, Wright Line, 251 NLRB 1083 (1980), enfd. 602 F.2d
899 (1st Cir. 1981), cert. denied 455 U.S. 984 (1982). The
Respondent has failed to demonstrate that it would have
taken the same action against Barkley even in the absence
of any union considerations. The parties are in agreement
that Respondent’s financial ability did not play a role in the
discharge (Tr. 8). And it is clear that Barkley could have
been reassigned to his former work in the plant or Thorgren
could have offered to keep Barkley on a part-time basis at
a reduced salary if his farm work did not justify a continu-
ation of the same employment relationship. In short, Re-
spondent’s reasons for the discharge were implausible and
pretextual.
The allegation of 8(a)(1) misconduct is fully supported by
the record. Supervisor Beiswanger who blamed Julie Pitt for
intentionally damaging a machine, was angry when he threat-
ened her with more onerous working conditions on March 5,
1991. With a clear reference to the Union or ‘‘union
games,’’ he screamed at her ‘‘I will make it so hard for you
in here, you won’t be able to’’ in a tone of voice described
as very loud, very mean, and swearing (Tr. 297). Even
though the Respondent did not follow through on these
threats, such conduct is clearly coercive and constitutes an
interference with an employee’s Section 7 rights in violation
of Section 8(a)(1).
Beiswanger’s subsequent remark to employee Michael
Phipps was not made in anger or in a threatening tone. But
his message was clear, the Company would not bargain in
good faith and bargaining would be futile, because the Re-
spondent would never give them a contract. Such a message
has long been regarded as coercive and in violation of Sec-
tion 8(a)(1) of the Act.
The next allegation presents the question whether the
Company’s refusal to assign overtime work on weekends to
Ricky Lockard was based upon his union activities or a con-
sequence of his inferior workmanship. Lockard had been em-
ployed as a molding operator since July 1989. Since March
1990, Lockard had actively supported the Union and was
listed among the five campaign supporters in a letter, dated
March 6, 1990, from the Union to the Company (G.C. Exh.
2). As a member of the organizing committee, he distributed
union literature and union authorization cards. He always
wore union buttons and other union insignia, he attended
union meetings and participated in the February 1991 picket-
ing of the plant (Tr. 273–274). When in March 1991, over-
time was offered to the employees, he volunteered by signing
the signup sheets (G.C. Exh. 7). On the following day,
March 23, 1991, he noticed that he was not among the em-
ployees scheduled for overtime. Instead, he received an
‘‘Employee Disciplinary Report,’’ signed by Supervisor
Glenn Dowd, who explained that Lockard had produced
‘‘short parts’’ on the prior day and was not permitted to
work overtime (G.C. Exh. 13, Tr. 276–279). Lockard volun-
teered several times thereafter for overtime but was not
scheduled even though he had more seniority than other em-
ployees who were scheduled (Tr. 280–281). Vice President
Thorgren testified that he had instructed his secretary not to
assign Lockard any overtime work because he had performed
defective parts on prior occasions. The record shows that
632 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 G.C. Exhs. 16 and 17 were received into the record, but appear
missing in the exhibit file (Tr. 319–320, R. Br. p. 10).
prior to the March reprimand, Lockard received a written
warning on March 21, 1990, because of carelessness and de-
struction of company property and another one on January
18, 1991 for carelessness and defective work (Tr. 289–291,
Exhs. 1, 2). While it does not appear implausible for a super-
visor to deny to an employee a company benefit because of
the employee’s inferior performance on his job, he was the
only employee ever disciplined in such a fashion (Tr. 60,
285). The Company had in the past issued suspensions to
several employees (Tr. 319–320).3 Moreover, the record also
shows that other employees had produced defective parts and
that it was not an uncommon occurrence (Tr. 61, 285). Con-
sidering the disparate treatment of Lockard, the timing of Re-
spondent’s action, approximately 1 month after the news-
paper publicity about the picketing, and the surrounding cir-
cumstances, including other violations of the Act, I conclude
that Respondent’s conduct was actually motivated by
Lockard’s extensive union activity. Again the Respondent
has not shown that it would have taken the same action in
the absence of any union consideration. Wright Line, supra.
The final allegation in the complaint, the offer of overtime
as an inducement to affect the decertification petition, must
also be upheld. The decertification petition was filed with the
National Labor Relations Board on May 23, 1991. On May
29, 1991, the Company posted a company notice on the bul-
letin board informing the employees that the petition had
been filed and that the Company expected an election (G.C.
Exh. 5). On the same day and next to it, the Respondent
posted a notice ‘‘offering overtime before and after shifts for
personnel as machine operators’’ (G.C. Exhs. 6, 11). The no-
tice stated that the Company had taken the action ‘‘[d]ue to
an unexpected, temporary surge in orders.’’ Thorgren’s testi-
mony in this regard was not convincing and certainly did not
show any temporary situation. His testimony, unsupported by
any documentary evidence, explained that machines stood
idle due to a lack of operators, that the Company was behind
in filling orders and that he anticipated new orders from such
firms as Fedders, Broan, Owens-Corning, Carrier, and
Mashushista, a new customer (Tr. 327, 331–335). His testi-
mony, however, does not convincingly support the claim of
‘‘an unexpected, temporary surge in new orders.’’ Indeed,
employees Julie Pitt and Rachel Carlson who were familiar
with the manufacturing backlog did not observe any increase
in new orders. They supported Thorgren’s testimony that the
Company was behind in meeting its production schedule and
that the workforce was reduced through attrition. However,
according to their observations, there was no change and the
Company always lagged behind in filling orders. Thorgren so
much as conceded that the production problems had existed
prior to the posting of the notice. When asked when he de-
cided that the solution to the Company’s problem required
overtime, he stated, ‘‘it had probably been coming for some
time prior to my posting’’ (Tr. 73). He explained further that
he had an attendance problem, that June was the heaviest va-
cation time and that customers were calling every day re-
questing that their orders be filled (Tr. 74–75). While under
those circumstances the Respondent may well have exercised
its sound business judgment to schedule overtime for its em-
ployees to increase production, there is no explanation in the
record for the timing of the postings. Counsel’s direct ques-
tion in this regard did not provide a plausible reply: ‘‘I think
that there was probably a great pressure by our people re-
ceiving phone calls and saying hey, we’re not getting our
product, where is our product’’ (Tr. 75). Respondent’s argu-
ment provides this explanation: ‘‘It was simply a coincidence
that both notices were posted the same day’’ (R. Br. p. 22).
The Board has faced the issue of employer inducements
for a long time, offers of money accompanied by an urging
to vote a particular way is usually regarded as an unlawful
interference, or increases in pay in the context of repeated
references to the union, or benefits announced before an
election calculated to influence the employees’ choice. NLRB
v. Rich’s of Plymouth, 578 F.2d 580 (1st Cir. 1978); Coronet
Instructional Media, 250 NLRB 940 (1980); Coca Cola Bot-
tling Co., 132 NLRB 481 (1961). I am not convinced that
the offer of overtime posted on the same day with the notice
of a decertification petition was a mere coincidence. I find
instead that the posting was made in a calculated effort to
encourage the employees to support the decertification effort
in violation of Section 8(a)(1) and (3) of the Act.
CONCLUSIONS OF LAW
1. Thorgren Tool & Molding, Inc. is an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union, Local Lodge 1227, District Lodge 72, Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
3. By threatening its employees with more onerous work-
ing conditions if they supported the Union or served as union
officers, and by threatening employees that the Respondent
would never reach a collective-bargaining agreement with the
Union, the Respondent violated Section 8(a)(1) of the Act.
4. By posting a notice granting its employees greatly in-
creased overtime work opportunities in order to encourage
unit employees to abandon their support of the Union and to
support the decertification effort, the Respondent violated
Section 8(a)(1) and (3) of the Act.
5. By discharging its employee Harold Barkley and by re-
fusing to provide its employee Ricky Lockard the overtime
work, because of the Union, the Respondent violated Section
8(a)(3) and (1) of the Act.
6. The unfair labor practices affect commerce within the
meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Having unlawfully refused to provide overtime hours to
Ricky Lockard and having discharged Harold Barkley, the
Respondent shall offer Harold Barkley reinstatement and
make both employees whole for lost earnings and other bene-
fits computed on a quarterly basis from the date of discharge
to the date of a proper offer of reinstatement, less net interim
earnings in accordance with F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
633THORGREN TOOL & MOLDING
4 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
5 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.’’
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended4
ORDER
The Respondent, Thorgren Tool & Molding Company,
Inc., Valparaiso, Indiana, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening its employees with more onerous working
conditions because of the employees’ union activity, and
threatening them that the Respondent would never reach a
collective-bargaining agreement with the Union.
(b) Posting a notice granting employees increased overtime
work or announcing other inducements in order to support
the decertification effort.
(c) Discriminating against its employees, refusing to pro-
vide overtime work to certain employees, and discharging
employees because of the Union.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Harold Barkley immediate and full reinstatement
to his former job or, if that job no longer exists, to a substan-
tially equivalent position without prejudice to his seniority or
any other rights or privileges previously enjoyed and make
him and Ricky Lockard whole for any loss of earnings and
other benefits suffered as a result of the discrimination
against them in the manner set forth in the remedy section
of the decision.
(b) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(c) Post at its Valparaiso, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’5 Copies of the notice, on
forms provided by the Regional Director for Region 25, after
being signed by the Respondent’s authorized representative,
shall be posted by the Respondent immediately upon receipt
and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(d) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.