Thurner Heat Treating Corp.

National Labor Relations Board - Board Decisions

Nov 2, 1976

226 N.L.R.B. 716 (N.L.R.B. 1976)

716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thurner Heat Treating Corp. and Allan Mann and
International Union, United Automobile , Aerospace
and Agricultural Implement Workers of America
(UAW) and Bruce Buenning. Cases 30-CA-3086,
30-CA-3112, and 30-CA-3152
November 2, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On January 26, 1976, Administrative Law Judge
Elbert D. Gadsden issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the General
Counsel filed a brief supporting the Administrative
Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order, as modified
herein.
We agree with the Administrative Law Judge that
the Respondent committed extensive and pervasive
unfair labor practices, as fully described in his Deci-
sion , and that, therefore, a bargaining order is war-
ranted. We further find that, in the circumstances of
this case, the Respondent violated Section 8(a)(5) of
the Act, although that specific allegation was not in-
cluded in the consolidated complaint. We assume
that this failure resulted from our decision in Steel-
Fab, Inc., 212 NLRB 363 (1974), which was modified
in Trading Port, Inc., 219 NLRB 298 (1975). In any
event, the record discloses that the issue of the Re-
spondent's bargaining obligation was fully litigated
at the hearing. Thus, the Administrative Law Judge
found, as alleged in the complaint, that since April
10, 1975, the Union has been the duly designated
bargaining representative of a majority of the Re-
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C.A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 In the absence of exceptions thereto, we adopt , pro forma, the finding of
the Administrative Law Judge that Paccagnella was not constructively dis-
charged in violation of Sec 8(a)(3) and (1) of the Act
spondent's employees in an appropriate unit. The
Administrative Law Judge further found, as alleged,
that the Union demanded recognition-on April 10,
and that the Respondent received the-Union's April
10 letter demanding recognition on or about the
same date.
The Respondent has filed no exceptions to the
foregoing findings of the Administrative Law Judge
and we adopt these findings which are fully support-
ed by the record. While the complaint` alleged that
the Respondent "failed and refused" to bargain with
the Union, upon receipt of the April 10 demand let-
ter, the Administrative Law Judge made no specific
finding in this regard. However, in view of its silence
in the face of the Union's demand, we find that the
Respondent has failed and refused to bargain within
the meaning of Section 8(a)(5) of the Act. Accord:
N.L.R.B. v. RegalAluminum, Inc., 436 F.2d 525 (C.A.
8, 1971), enfg. 171 NLRB 1403 (1968). Accordingly,
all of the elements necessary to prove a violation of
Section 8(a)(5) were established in connection with
the General Counsel's theory that a bargaining order
was necessary to remedy the instant unfair labor
practices. Therefore, we find that since April 10,
1975, and thereafter the Respondent has refused to
recognize and bargain with the Union as the repre-
sentative of its employees in an appropriate unit.'
AMENDED CONCLUSIONS OF LAW
In accord with the above findings, we adopt the
Administrative Law Judge's Conclusions of Law
with the following modifications:
1. In Conclusion of Law 5, change "Section 9(e)"
to "Section 9(a)."
2. Substitute the following for Conclusion of Law
"6. By failing and refusing, since April 10, 1975,
6:
and at all times thereafter, to recognize and bargain
with the Union as the exclusive representative of its
employees in the appropriate unit set out above, Re-
spondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5)
of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, Thur-
3 Although Respondent embarked upon its course of unfair labor prac-
tices prior to April 10, 1975, the Union did not achieve majority status until
that date Accordingly, our Order does not require Respondent to bargain
for any period prior to April 10, 1975.
226 NLRB No. 111
THURNER HEAT TREATING CORP. 717
ner Heat Treating Corp., Wauwatosa, Wisconsin, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order,
as so modified:
1. Insert the following as paragraph 1(n) and relet-
ter present paragraph 1(n) as 1(o):
"(n) Failing or refusing to bargain collectively
with International Union, United Automobile, Aero-
space and Agricultural Implement Workers of Amer-
ica (UAW), as the exclusive bargaining representa-
tive of the employees in the following unit:
"All production and maintenance employees of
Respondent, excluding office clerical employees,
.professional employees, guards, and supervisors
as defined in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT transfer,, discharge, demote, re-
fuse to employ, or otherwise discriminate
against employees in order to discourage mem-
bership in or support of International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), or any
other labor organization.
WE WILL NOT threaten employees with dis-
charge or other reprisals if they become or re-
main union members or give assistance or sup-
port to a union.
WE WILL NOT threaten employees that the
plant will be shut down or moved away, or that
the work done in the plant will be moved away,
if a union comes into the plant.
WE WILL NOT threaten or enforce more oner-
ous conditions, of employment to discourage
union membership or activities.
WE WILL NOT threaten -employees that the se-
lection of a union as their bargaining representa-
tive will result in loss of benefits or other detri-
ment.
WE WILL NOT interrogate employees concern-
ing their union membership or activities in a
manner violative of Section 8(a)(1) of the Act.
WE WILL NOT solicit and encourage employees
to initiate, circulate, and subscribe to a petition
discouraging employee support of the UAW, or
any other labor organization, and threaten em-
ployees with discharge if they do not subscribe
to such petition.
WE WILL NOT promise or grant employee bene-
fits in order to discourage union activities or
membership.
WE WILL NOT engage in, or create the impres-
sion of, surveillance of the union activities of
employees.
WE WILL NOT induce, instruct, or encourage
employees to ascertain or report on the union
activities, membership, or union adherence of
other employees.
WE WILL NOT threaten employees that we will
not bargain with a union selected by employees,
or will not contract with such a union except
upon unfavorable terms, or by any like or simi-
lar means indicating that the selection of a
union by the employees as their bargaining rep-
resentative will be a futile act.
WE WILL NOT solicit employee grievances or
tell employees they do not need a union in order
to discourage union membership or activities.
WE WILL NOT require prospective employees to
answer questions on the employment applica-
tions as to their union membership.
WE WILL NOT refuse to bargain collectively
with International Union, United Automobile,
Aerospace and Agricultural Implement Workers
of America (UAW), as the exclusive bargaining
representative of the employees in the unit de-
scribed below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights guaranteed in Section 7 of the
Act.
WE WILL offer to the following named employ-
ees immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, and make them whole for
any loss of earnings they may have suffered by
reason of our discrimination against them: Lau-
ra Giefen, Allan Mann, Amos Raffeet, John
Banner, Del Wilson, Garth Fletcher, Brian
Holst, Robert Hardtke, Robert Rau, Thomas
Whitney, Ralph Andersen, Bruce Buenning, and
Pamela Miller.
WE WILL, upon request, recognize and bargain
with the International Union, United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW), as the exclusive
representative of all the employees in the bar-
gaining unit described below and, upon request,
if an understanding is reached, embody such un-
derstanding in a signed agreement. The bargain-
ing unit is:
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production and maintenance employees,
excluding office clerical employees, profes-
sional employees, guards, and supervisors as
defined in the Act.
WE WILL convene during working time, by de-
partments and shifts, all our current employees,
and a responsible official at the departmental
supervisor level or above will read to depart-
ment employees the contents of this notice.
All our employees are free to become or remain, or
refrain from becoming or remaining, members of In-
ternational Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), or, any other labor organization.
THURNER HEAT TREATING CORP.
DECISION
STATEMENT OF THE CASE
Wisconsin . During the past calendar year , a representative
period , Respondent, in the course and conduct of its busi-
ness operations , performed services valued in excess of
$50,000 for firms located in Wisconsin , each of which in
turn sold and shipped goods and materials valued in excess
of $50 ,000, in interstate commerce, to points located out-
side the State of Wisconsin.
The complaint alleges, the answer admits, and I find that
Respondent is an employer engaged in commerce within
the -meaning of Section 2(6) and (7) of the Act, as well'as
an employer engaged in operations affecting commerce as
defined in Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
International Union , United Automobile , Aerospace and
Agricultural Implement Workers of America (UAW), is
now, and has been at all times material herein ; a labor
organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
ELBERT D. GADSDEN, Administrative Law Judge: Pur-
suant to an original and amended charge filed on March 21
and 24, and April 1, 1975, respectively, by Allan Mann, an
individual; and charges filed on April 11 and May 21,
1975, by Bruce Buennmg , an individual , and International
Union, United Automobile, Aerospace and Agricultural
Implement Workers of America (UAW), herein called the
Union, respectively, the General Counsel of the National
Labor Relations Board thereupon issued complaints I on
May 21 and 29, 1975, respectively, alleging that Thurner
Heat Treating Corp., herein called Respondent, among
other 8(a)(1) violations, discriminatorily discharged several
of its employees for engaging in Section 7 protected rights,
in violation of Section 8(a)(3) and ( 1) of the National La-
bor Relations Act, as amended, herein called the Act.
Respondent filed an answer denying violations of the
Act as alleged.
The hearing in the above matter was held before me at
Milwaukee, Wisconsin, on June 23-26 and July 14-17,
1975. Briefs have been received from counsel for the Gen-
eral Counsel and counsel for Respondent, respectively,
which have been carefully considered.
Upon the entire record in this case and from my obser-
vation of the witnesses , I hereby make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent is now, and has been at all times material
herein , a Wisconsin corporation, where it is engaged in the
heat treating of metals at its plant located in Wauwatosa,
1 The complaints issued pursuant to the charges filed by Allan Mann and
the Union were consolidated for hearing by order dated May 8, 1975, and
the complaint issued pursuant to the charge of Bruce Buemmng was consoli-
dated with the complaints of Mann and the Union by order dated May 29,
1975
A. Background
Respondent, Thurner Heat Treating Corporation, is a
family corporation engaged in the heat treating (softening)
of metals at its plant located in Wauwatosa, Wisconsin.
The corporate family-consists of Robert Thurner, president
and owner, and his three sons, Timothy, Scott, and
Thomas Thurner. The Respondent 's amended answer to
the complaint admits that all of the Thurners are supervi-
sors within the meaning of the Act , but it denies superviso-
ry status of the following persons: Donald Hausen; Randy
Kocherer; Michael Adamski; Ted Davis; and Joseph Be-
lich.
Subsequently, during the proceeding the parties stipulat-
ed that Don Hausen is also a supervisor.
The complaint alleges that in March 1975 Respondent's
employees decided to organize a union and, thereafter,
proceeded to engage in union activity on behalf of that
effort ; that during . the course of its organizing campaign
various employees were interrogated by certain supervisory
personnel about their union interests, sympathies , and ac-
tivities ; that Respondent was surveilling the employees'
union activity ; that Respondent threatened to withdraw
benefits, demote, transfer, or terminate employees and/or
close its plant; that Respondent solicited employees' griev-
ances, promised wage increases to employees , solicited and
encouraged employees to initiate and subscribe to a peti-
tion discouraging employees' support of the Union, threat-
ened employees with discharge if they did not sign the
aforedescribed petition, constructively discharged two em-
ployees; and that in late March and early April 1975, the
Respondent -discriminatorily changed the work assignment
of 'one employee and discharged the following employees
on the dates set opposite their names , for engaging in
union activity:
Laura Giefen 3/17
Allan Mann 3/20
THURNER HEAT TREATING CORP. 719
Amos Raffeet 3/20
John Banner 3/20
Del Wilson 3/20
Garth Fletcher, 3/24
Brian.Holst 3/24
Robert Hardtke 3/24
Timothy Zimmer 3/24
Richard Thraves 3/24
Robert Rau 3/26
Thomas Whitney 3/27
Jeffrey Piemazek 3/3
Ralph Andersen 4/7
Bruce Buenning 5/20
The Respondent denies that it engaged in such conduct
as alleged, and maintains that the above-named employees
were discharged for cause and not for union activity.
The Respondent amended its answer and admitted to
paragraph 9 of the complaint that a unit consisting of all
production and maintenance employees of Respondent,
excluding office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act, is appro-
priate for purposes of collective bargaining?
B. Union Activity of Employees and Their Discharge by
Respondent
Dischargee Laura Giefen was employed by Respondent
from May 15, 1974, to March 17, 1975, as an induction
machine operator. On March 10, 1975, Giefen was trans-
ferred from the second shift to the first shift by Supervisor
and General Foreman Don Hausen, who advised her that
all women were going to be transferred to the first shift.
However, Donna Riley, who also worked second shift, was
not so advised. On that evening Giefen asked the second-
shift foreman, Randy Kocherer, why she was being trans-
ferred and he said he did not know. About 11:30 a.m. on
March 11, 1975, Giefen went to the office of Tom Thurner
and asked him why she was being transferred . He said she
was not the only one being transferred , that Bruce, from
the inspection division, and others were being transferred,
too, and that it was nothing personal against her.
On March 13, 1975, Giefen held a conversation with em-
ployee Garth Fletcher about how she felt Respondent was
treating her unfairly and she suggested the employees orga-
nize a union. Fletcher agreed with her. On March 14, 1975,
Giefen and other employees (Allan Mann, Amos Raffeet,
Chuck Lentz, Del Wilson, and Don and Pamela Miller met
at 12:30 a.m. on March 15, 1975, at the Tosa Inn and
discussed organizing the Union. Giefen further testified
that on Monday, March 17, 1975, just after she punched in
at work at 7:25 a.m. General Foreman Don Hausen asked
her what kind of car did she drive and she asked him why
did he want to know; that she finally acknowledged that it
was red ; and that he then said someone had, reported she
was driving through the parking lot at a rate of 60 to 90
miles an hour. Giefen then said try 10 or 15 miles per hour
and asked Hansen was he going to give her a speeding
ticket. Foreman Hausen said; "No, you're fired for driving
too fast."
Giefen denied that she was driving at an excessive rate
of speed and she described how she has to make two-right-
angle turns in leaving the parking lot. On March 19, 1975,
Giefen, Allan Mann, John Banner, Amos Raffeet, Chuck
Lentz, Charlie Brah, William (Dewey) Webber, and Mary
and Dick Thraves met at the Tosa Inn, where they further
discussed and finally decided to secure the services of the
UAW Union, which Dick Thraves agreed to contact. She
and her aforenamed fellow employees met-again at the
Tosa Inn on March 20, and they called and held a meeting
on March 22 at the UAW hall. Employees present at that
meeting were herself, Allan Mann, Dewey Webber, Mary
Makal, John Banner, Tim Zimmer, Charlie Brah, Tony
Rose, Ralph Andersen, and Dick Thraves. Tom Schneider
of the UAW explained the advantages of the Union and
gave them union authorization cards to solicit the signa-
tures of their fellow employees. He explained that they
needed the signatures of 65 percent of the employees.
General Foreman Hausen testified that he transferred
Giefen from the second shift to the first shift because her
work performance was unsatisfactory. He acknowledged
that Joe Belich reported the parking lot speeding incident
to him on March 14, 1975. However, Belich testified that
he recognized Giefen as the driver of the car- although he
was not able to recall the make, model, or color of the car,
nor estimate its speed . Foreman Hausen further testified
that on March 17, 1975, he discharged Giefen for the
speeding incident, and that Belich told him the car he ob-
served speeding was a red car. On cross-examination, Lau-
ra Giefen admitted that her prior foreman, Randy Kocher-
er, warned her about being tardy in January 1975; that
between March 10 and 12, 1975, she discussed the Union
for the first time with Amos Raffeet and Del Wilson at her
house. She does not recall ever having been warned or told
by management about allowing someone else to punch her
in or to punch her timecard. She also admitted that she was
disturbed on March 14 when Foreman Hausen told her to
go to lunch early, and she thereupon flipped her lunch into
the wastebasket. She denied that Hausen asked her about
13 lost pieces of a customer's product and she admitted
that the employees did not have any `union activity in the
plant prior to March 24, 1975.3
Laura Giefen further testified that she signed ,a union
authorization card on March 22, 1975, and that she saw
3 I credit the undisputed and corroborated testimony of Laura Giefen
that, on March 13, she spoke to Garth Fletcher in the plant about organiz-
ing the Union, and that on March 14 and 15 she and fellow employees
Mann, Raffeet, Lentz , Wilson , and Fletcher commenced union organizing
efforts at the Tosa Inca I further credit Giefen's denial of the parking lot
incident over the testimonial version of Belich because Belich did not ap-
pear to be telling the truth and his answers to questions on Giefen's work
performance appeared selective . He was squirming in the witness chair
while giving his vague description of the speeding charge, be could not recall
the make, model , nor, color of the car , and he caused Giefen to be dis-
charged precipitously ' without any warning against a repetition of such
speeding conduct . Belich's version is further discredited by the credible
testimony of Pamela Miller who said Belich told her, in the presence of
Sheila and Joyce Flory, that he did not know Giefen was the one speeding
on the parking lot, and that the car was a big red car with green splotches
When Giefen's discharge is considered along with the, several dischar esg
2 The facts set forth above are undisputed and are not in conflict in the and all of the evidence , of record, infra, I am persuaded that she was testify-
record, ing truthfully I
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chuck Lentz sign such a card-, in the union hall. On March
24, 1975 , she said she , Amos Raffeet, Allan Mann and his
wife , and Banner congregated at the end of Respondent's
parking lot, where they solicited Respondent's employees
for the UAW while Joe Belich from management was
standing by the gas pump at the top of the hill. She com-
pleted a union authonzation card for Chuck Brah at his
request and he signed it on March 24, 1975. On or about
March 26 or 28 , 1975, Giefen said she submitted union
authorization cards to the UAW representative, Donald
Schneider , for the following persons: Donna Riley, Don-
ald Kargus , Ferdinand -Koehn , Kenneth Colle, William
Zacher, Charles Brah, Anthony Farkas, Laura Giefen,
John Banner, Allan Mann , Garth Fletcher , Del Wilson,
Timmy Zimmer, and Amos Raffeet.
Pamela Miller testified that she was employed by Re-
spondent as a clerical in the shop 's office from September
23, 1972, until March 21, 1975, when she voluntarily termi-
nated her employment . Although she was employed in a
clerical capacity under the supervision of Joyce Flory, she
nevertheless associated with shop employees and attended
the first organizing meeting at the Tosa Inn on March 14
and 15, 1975. At or about 4:30 p.m. on March 20, 1975,
Dewey Webber stuck his head in the door of the office and
told her that Amos Raffeet had dust been fired and she
said, "You're kidding." Shortly thereafter, Webber re-
turned to the office and told her that Allan Mann, Del
Wilson , and John Banner had been fired . She asked Web-
ber what was going on and he said he did not know. At or
about 5:15 p .m. she saw Amos Raffeet in front of the
shop's office and asked him what happened and he said he
was fired for being late too often.
Miller also said that between 5:15 and 5:30 p .m., Belich
said to her in the presence of coworkers Sheila and Joyce
Flory he did not know that Laura Giefen was the person
speeding through the parking lot. She said she asked him
what color car Giefen was driving and he said a big red car
with green splotches and that it was after 4:30 p.m. She
said she knew that a friend of Sheila who picks her up
between 5:30 and 6 p .m. had a red Javelin.
On the next morning, March 21 , 1975, Miller said she
was informed by Joyce Flory that she (Miller) was to re-
port to shipping and receiving and not to say anything with
a gesture, "putting her finger across her throat " as if to say,
cut your throat . She had worked in shipping and receiving
before ' as a fill-in on occasion, but this was not a fill-in in
her judgment, and the last such occasion when she filled in
was in November 1974. She nevertheless reported to ship-
ping and receiving and proceeded to perform the work (in-
voices, etc.). Behch came into the shipping and receiving
office 30 minutes later and said to her, "Orders from the
front office, you have to wash windows." She then asked if
it were Scott's orders and he said, "Yes ." She said this was
the first time she was asked to wash windows and she did
have enough clerical work to do to keep her busy for the
entire day , so she told Belich she was not going to wash
windows because that was not her job . Belich said he had
his orders. However, she nevertheless got a pail of water
and a squeegee and started washing the windows. About 30
minutes later Behch returned and told her she wasn't sup-
posed to do the entire job (washing windows) right away
because it was just a fill-in job. She told him to make up his
mind and she returned to the invoices.
About 10 o'clock, Timothy Thurner entered the shipping
and receiving department and Miller said she asked him to
level with her , she wanted to know if Scott Thurner was
trying to pressure her, trying to make her mad, so that she
would quit ; and he said , "Yes." Subsequently , between
10:30 and 11 a.m. Belich came into the office and said,
"More orders from the front , you can only take half of an
hour for lunch and you cannot leave the plant ." She asked
Belich were these more orders from Scott Thurner and he
said, "Yes." She said she had always had an hour for lunch
and she customarily left the plant during that hour. Never-
theless, she complied with the orders and she went to the
office of Tom Thurner about 1:30 p.m . and asked him why
the new orders , was Scott Thurner trying to pressure her
into quitting. He replied that he was responsible for the
restricted lunch period but he said he would check with Scott
Thurner about the other orders. An hour later, Tom Thur-
ner called her into his office and told her he did not know
how she knew it but she was right. She then asked why and
he said because she had friends in the plant and Scott Thurner
did not want her at Thurner Heat Treating . He further said,
that there were two against one, Robert Thurner and Scott
Thurner, and he (Tom) was for her . She asked him what
she should do, and he told her, if she wanted to walk out
with a little bit of dignity , she should quit . He then asked
her if she wanted to quit formally and she said, "`Yes." As
he shuffled the timecards of Amos Raffeet , calling off the
times he had been late or absent, he said to her, "You have
some savory friends." Earlier that day he went into the of-
fice and asked for the last 15 timecards of Raffeet. Miller
said she had been late -several times during the last 15
workdays and had never been warned about being late.
About 4 : 45 p.m . on the same afternoon she went to Tom
Thurner's office to ask if it was all right if she left at 5
o'clock and he said that was fine and told her that some of
her friends were holding a meeting down on the parking lot.
She then left the plant . Miller also stated that she did not
sign a union authorization card with the UAW but she did
solicit and obtain a signed card from Wayne Krieger and
mailed it to Tom Schneider, the UAW representative. On
cross-examination she admitted she had cleaned windows
in the shop office before only when her regular work was
slow. She admitted she had never held or had a discussion
of the Union involving managerial personnel.
Supervisor Joseph Belich testified that Pamela Miller
manifested a negative attitude towards doing any work
when he assigned her to the receiving and shipping office
in accordance with orders from Scott Thurner . He denied
that he ever told Miller to stop washing the windows but
admitted that he ordered her to take half an hour for lunch
because the normal lunch period in the shipping office is
one-half hour. He also denied that he told Miller not to
leave the plant during the lunch period but he did order her
not to go out with truckdrivers from other companies in
accordance with company policy. He further stated that
Miller refused to do the assigned work and went to the
office of Tom Thurner and did not return . He admitted
that he mentioned Miller's conduct to Scott Thurner but
did not report the same to his supervisor , Don Hansen.
THURNER HEAT TREATING CORP.
Timothy Thurner denied having any conversation with
Pamela Miller and Belich testified that Pamela Miller's as-
signment to the shipping room was a part of an overall
effort of Respondent to train all "our girls" on the opera-
tion of all aspects of the work. Tom Thurner corroborated
his testimony in this regard but dewed that he told Miller
she was right about Scott Thurner trying to pressure her
out of the job and that he would check with SScott on that
matter, or that there were two against one, that he was in
her favor, and that she should quit if she wanted to walk
out with dignity. On cross-examination he said he knew
that Pamela Miller had worked for Belich before and that
she had told him on a prior occasion that she had a person-
ality conflict with him .4
Dischargee Allan Mann testified that he was employed as
a general laborer in early August 1974 for $3 per hour until
March 20, 1975, when he was discharged by Respondent.
During his interview and completing his application for
employment with Respondent, he had the following con-
versation with Tom Thurner:
Mr. Thurner asked me about the Union, what I
thought about it there. And, I said I thought it was
pretty good, except there was a lot, you know, there
was a lot of layoffs. Because, you know, the car indus-
try, it's up and down all the time. And then, he asked
me what I thought about having a Union at Thurner.
And, I said, well, I says, if there hasn't been a Union
in this many years, there, they probably didn't need
one, but I didn't know for sure, because I was never
working there.
Mann said Tom Thurner then told him Respondent has
never had a layoff and he hired him (Mann).
With respect to organizational activity of the employees,
Mann testified that he attended a meeting at the Tosa Inn
on March 11, 1975, with other employees where they dis-
cussed organizing a union . He also attended the meeting
on March 15, 1975, at the Tosa Inn. On March 17, 1975, he
said he went to Ralph Andersen in the inspection shop, just
behind Tom Thurner's office, and told him a union meet-
ing had been scheduled for 10 a.m. on March 20, 1975, and
asked him to try to be present. He also talked to several
other employees about that meeting. On March 20, 1975,
he and Amos Raffeet were in the induction department
talking about the Union when Supervisor Don Hausen ap-
proached them and told Raffeet to go and see Tom Thur-
ner in his office. Raffeet returned about 45 minutes later
and informed him that he (Raffeet) had been fired by Tom
Thurner for being in arrears in alimony to two or three
wives and he was in trouble with the welfare board, and
also for being late too many times.
41 credit the testimony of Pamela Miller with respect to her social rela-
tionship with the organizing employees, her assignment to the receiving and
shipping department, her conversations with Timothy Scott and Tom Thur-
ner about her being pressured to quit her job; that she had some savory
friends, and her friends (the organizing employees ) were holding a meeting
down on the parking lot; and that, if she wanted to walk out of thejob with
dignity, she should quit . I credit Pamela Miller 's testimony in this regard not
only because I was persuaded by her demeanor that she was telling the
truth, but also because I was persuaded by the demeanor of Belich and the
Thurners , as well as by the consistent tenor of all the evidence of record that
the agents of Respondent were not testifying truthfully
721
Mann testified that later that same day, while he was
performing a special job which necessitated the use of
some asbestos rope, the following events occurred:
A. Oh, I'd say after I did _ about thirty-five, forty
pins, or so, I don't know the exact count, I ran out of
this asbestos rope. And, I went over to Chuck Lentz,
to find out where this asbestos rope was, because I
didn't normally work in induction. So, I was over
there asking him where it was, and Don Hausen had
come up to me and he asked what I was doing away
from the machine. I explained to him that I needed
asbestos rope. And, then, he asked me how many pins
I had left. I said, well, I don't- know exactly, maybe
sixty, seventy pins. And, he says, well, you're fired.
And, I said, for what. And, he said for leaving my
machine.
Q. Did you try to explain why?
A. Yes. I told him that I needed asbestos rope. I
couldn't run the machine without it. And, he said he
didn't care. He says, punch out.
Q. Did you say anything else?
A. I said, well, I says, you didn't hire me, you're not
my foreman. I says, I'd either like to see Randy Koch-
erer, or I would like to talk to Tom Thurner.
Q. What, if anything, did Mr. Hausen say?
A. Well, he threatened he'd throw me out unless I
punched out right now and left.
Q. At the time you went over to talk with Chuck
Lentz, regarding this asbestos rope, did you leave your
machine on, or turn it off?
A. No, it was completely off. We have set Compa-
ny policy that when we leave the machine at any time,
so the electric coil would not be on, you turn off the
field. And, the field was off when I left the machine.
So, it was impossible to run.
With respect to Mann's discharge, General Foreman
Don Hansen testified as follows:
Q. Could you relate to us that conversation that
you had with Mr. Mann in regards to his discharge?
A. Yes, I can. He was talking to a Charles Lentz. At
the time he was speaking to him, he was supposed to
be running an induction machine. I noticed that the
induction machine was running unattended. Which is
strictly against Company policy.
Q. What did you say to him and what did he say to
you?
A. I asked him if he knew what the policy ' was
about leaving the machine unattended. He told me he
did. At that time, I discharged him.
Hansen further testified that, about 2 weeks prior to his
discharge of Mann, the latter was in charge of an airplane
parts job which was loaded on a truck for delivery to a
customer in Minnesota. The crates had slipped and the
parts were damaged. Mann admitted to him that he
(Mann) was responsible for putting the parts on the truck
improperly.
Mann further testified that on March 22, 1975, he at-
tended a meeting with the UAW representative, Tom
Schneider, along with 14 or 15 other employees of Respon-
722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent including the following: Amos Raffeet, Laura Giefen,
Del Wilson, John Banner, Dewey Webber, Chuck Lentz,
Tim Zimmer, Donna Riley, Mary Makal, and Pamela
Miller. On March 24, 1975, from 6 a.m. to 8:30 a.m. he
(Mann), his wife, Amos Raffeet, Del Wilson, Laura Giefen,
and John Banner were on the road just east of the plant
soliciting the signing of UAW authorization cards from the
first-shift employees of the Respondent. Several of the em-
ployees signed cards at that time, including Donald Kar-
gus, Scott Webb, William Zacher, Dennis Mangless, and
Timothy Zimmer.
At or about 3 p.m. on April 4, 1975, Mann, Raffeet,
Giefen, Lentz, Miller, Makal, and Webber solicited UAW
authorization cards in front of the plant. During the course
of their„ solicitation, Foreman Don Hausen and Mike
Adamski drove up and Hausen asked them what were they
doing and he told them, distributing UAW cards. Hausen
then said he thought there were about 20 of them there and
Mann said he informed him no, "only 10 of us," and Hau-
sen said shortly he would send them a couple more. A few
minutes later, four squads of the Wauwatosa police depart-
ment arrived and parked around them; the officers asked
them who was the leader and Mann said he was; and
Mann told them what they were doing. Foreman Don
Hansen said okay and walked away. The officers told them
their rights and left. Mann said although they had solicited
with union authorization cards in front of the plant two or
three times prior to March 4., they had not seen the police
before.
On cross-examination Mann testified that on March 20,
1975, he left his machine unattended with the burner
turned off. He said,he had left his machine before during
working time and he was not warned nor was he told that
he would be fired for leaving his machine while it was run-
ning. He further stated that when he held a conversation
with Raffeet about the Union on March 20, the day he was
fired, Randy Kocherer could have been within hearing dis-
tance of them and could have overheard their conversa-
tion. He said he believed he was fired for union activities
because five union organizers (Giefen, Raffeet, Banner,
Wilson, and himself) were fired within a couple of days. He
said he talked to employees Donna Riley, Ralph Andersen,
Mike Vilnis, an employee named Bill, and others on a one-
to-one basis either before the shift or during lunch periods
on March 19, 1975. However, he stated that no one from
management was within hearing distance of their conversa-
tions. He was transferred to the induction job on February
26, 1975, and had had 2 days' instructions on how to per-
form the job from Tom Tomatz when he was first em-
ployed by the Respondent. Randy Kocherer did not testify
in this proceedmg.5
5 I credit the testimony of Allan Mann not only because I was persuaded
by the straightforward manner in -which he testified , but also because his
testimony , in part, was corroborated by other employee witnesses On the
issue as to whether Mann left his machine running on March 20 , 1 credit
Mann's version over that of Foreman Don Hausen because I received the
distinct impression from the overly emphatic manner in which Hausen testi-
fied that he was exaggerating and trying to either fabricate or magnify a
reason for discharging Mann This impression is further substantiated by
the fact that Hausen started mentioning'an incident involving Mann's in-
adequate loading of a truck 2 weeks before, and the fact that it is not
Dischargee Brian Holst testified that he was interviewed
for employment by Scott -Thurner on February 3, 1975,
during which time Thurner told him he would be on a
probationary period for 90 days and thereafter given a
raise, plus profit sharing. He was thereupon employed on
February 3, 1975, until he was -terminated by Respondent
on March 24, 1975. He reported to work on March 24,
1975, and was approached by Laura Giefen outside the
plant. Giefen asked him if he would sign a union authoriza-
tion card and attend a union meeting on the following Sat-
urday. He accepted a card, signed it, returned it to her, and
told her that he wasn't sure he could make the meeting. He
went into the plant to work about 7:25 and worked until
3:55, when Foreman Don Hausen approached him at his
machine and told him he did not have to punch out- that
day, that he (Hausen) would write him out at 4 o'clock.
Holst asked Hausen why , and Hausen said for missing too
many days during his probationary period. Holst said he
was absent only March 17-19-due to influenza and he
called the plant's office on March 17, and his mother called
in on another day to advise the Respondent of the same.
He denied that he stayed home to work on his car as an-
other witness in this proceeding testified. He did not bring
in an excuse for the absence because he was not advised to
do so. When he returned, no managerial personnel said any-
thing to him about being absent. He was never warned about
being late and he had never been told about a policy on
absenteeism during the 90-day probationary period.
However, Holst admitted that Don Hausen had previ-
ously spoken with him about his attendance on one occa-
sion before he was sick or ill. With respect to his work
performance, Holst testified as follows:
He told me that I was working out good. He couldn't
find enough work for me to do. Every time he gave me
a job, I'd run, it out. I never ran the same job all day
long. I was put on at least two different jobs every day.
On one particular job, he told me the faster I ran it,
the more money it would put in his pocket.
Holst further stated that on March 24, 1975, he told Ed
Muraczewski that he had signed a union card and asked
him if he would complete and sign a card . Muraczewski
said not at that time; that he would keep his mouth shut to
save his own job ,' but if a union came into the plant he
would join it. No one else heard this conversation at the
workbench. On cross-examination Holst said he had been
late a few times but more specifically, on further examina-
tion, he acknowledged that a few times meant during the
week February 3-8, when he was late twice, he left early
one time and during the week of February 22, he was late
four times and left early once; that during the week of
March 1 , he was late once and left early once; that during
the week of March 15, he was late once and during the
week of March 17-19, he was ill.
Dischargee Tom Robert Whitney was employed by Re-
spondent on March 8, 1975. During his interview for em-
ployment a few days before, Scott Thurner asked him how
he felt about unions and he told him he was not sympa-
established by the evidence that he warned Mann about that incident or
about leaving the machine running , if in fact he did, before he precipitously
discharged him
THURNER HEAT TREATING CORP. 723
thetic towards unions and would not engage in union activ-
ities. He was hired by Respondent at a salary of $3 an
hour. After reporting to work he asked Foreman Don Han-
sen about the trouble Respondent has had with the Union,
since he got that impression from the questions by Scott
Thurner. Foreman Hausen then said, "We fire them right
away." This statement is not denied by Hausen or any
other managerial personnel . Whitney reported to work the
next day (March 9) and 'sustained a fractured toe which
necessitated his absence from work for 2 weeks. He re-
turned to work on Monday, March 24, and observed some
employees on the roadway in front of the plant. They ap-
proached him and asked 'him if he had any interest in the
labor union and he advised them that he did not want to be
involved in such activity since he had just started `working
there. Before lunch period that day, employee Chuck Lentz
asked if he would join or support the union effort and he
said no he did not want to be involved.
Whitney further testified that on March 26, 1975, he had
another conversation with Chuck Lentz as follows:
At this time, I approached Mr. Lentz and told him
that at a later time, I would like to discuss the possible,
or, my possible involvement with the labor union. And,
that only-I would only be involved with him if my
involvement was to be kept completely a secret be-
tween he and I. Upon which, he agreed. And, agreed
to meet me after work.
After work he met with Lentz, Mary Makal, Dewey
Webber, and others and walked out to the parking lot and
got into Lentz' car, which was 45 yards from the plant.
Lentz gave him a union authorization card which he signed
while the second shift foreman, Randy Kocherer, and one
of the Thurners were in the plant when he left. He has no
evidence that either one of them saw him. He mailed his
card to the UAW and on the very next day, March 27,
towards the end of the shift, Supervisor Randy Kocherer
told him that, after he had gotten his things and punched
out, that he (Whitney) should come back and talk to him.
He asked Foreman Kocherer to talk to him'at that time
because he was on the way out. Kocherer then said, "There
would be no need in his coming back on the next morning," as
Friday was Good Friday. He asked Kocherer why and he said
he (Kocherer) did not think Whitney would work out. Whit-
ney said he had never received any kind of warning, but
rather, 'the day before his discharge, Randy Kocherer told
him it appeared that he (Whitney) was working out and
that Kocherer would move him from one job to another so
that he could gain broad experience. Whitney believed
someone from management saw him sign the card in
Lentz' car after the midnight shift or that Chuck Lentz told
someone he had signed it.
Scott Thurner denied that he ever asked employee Whit-
ney, or any other applicant for employment, how they felt
about unions and he denied telling Whitney the Respon-
dent was having trouble with a union, or asked him would
he engage in union activities if he were employed. He also
denied having any conversation about unions with Chuck
Lentz.'
Employee Kenneth J. Colle appeared in this proceeding
pursuant to a subpena and testified that he is now and has
been employed by Respondent since August 1974, and
works as a small furnace operator under the supervision of
Foreman Don Hausen. Upon his application for employ-
ment with Respondent he said he was interviewed by Tom
Thurner who asked him did he presently belong to a union
and he replied, "No"; and that Thurner then told him that
Respondent has never had a layoff, that it is nonunion and
then asked him was he for or against unions. He said he
replied that he was neither for nor against unions.
Colle said he learned about the union activity at the
plant on March 24, 1975, when Amos Raffeet, Laura Gief-
en, and Allan Mann were fired. On that day, he was ap-
proached by Laura Giefen who gave him a union authori-
zation card which he read, completed, signed, and returned
to Giefen. Thereafter, he said he distributed cards to fellow
employees Tom Helm, Rocky Englebretson, Bob Rau, and
Robert Hackman or Hackett.
About a week and a half later Foreman Hausen came to
him and said he had something for him and wanted to talk
with him. Later during the same afternoon Colle testified
that the following conversation took place:
A. He asked me to pass out this petition that he had
written, and that I was supposed to claim it as my
own. I was to go around to all the employees and have
them sign it, if they were against the Union coming in
to Thurner's.
Q. Did he say to you why he wanted you to do this?
A. Yes. He told me that he thought it was unfair
that the Union could force its way in without all the
employees being for it.
Q. What, if anything--did he give you anything, at
that time?
A. No. He told me that he didn't want to be seen
with it, or handing it to me. That he told me where I
could find it, and I was supposed to go and get it later
on.
Q. Where you were to find what?
A. The sheet of paper that he had written out what
he wanted me to type up.
Q. Did you do that?
A. Yes, sir. About a half hour later, I went and got
it, and he had told me I could go home and have it
typed up, and then bring it back.
Q. Now, we're talking about a sheet of paper?
A. Right. He had written it just on a plain sheet of
paper.
Q. Where was this sheet of paper located?
A. He had put it in one of his folders. He carries a
sheet around with a work list on it. He had slid it in
there, and put it in his desk, and I was supposed to go
and get it from there. He had told me where to find it.
6I credit Whitney's testimony that during his employment interview Re - employees Moreover. Scott Thurner' s testimony partially corroborates
spondent (Scott Thurner) asked him how he felt about unions , because, not Whitney 's testimony in that he admitted he asked applicants for employ-
only was I persuaded that he was telling the truth but his testimony corre- ment if they are members of the Union . I also credit Whitney's testimony
sponds to that of the testimony of employee Colle's interview, and other that Scott Thurner told him Respondent was having trouble with the Union
724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Is that what you did?
A. Yes, sir.
Q. So, you went to his desk and got a sheet of paper
with certain writing on it?
A. Right.
Q. As, best you can recall, what did the writing, or
what was written or printed, or whatever, on that piece
of paper?
A. We, the employees of Thurner Heat Treating
Corporation, do not want a Union forced in, or any
Union that we do not want, allowed into Thurner
Heat Treating, and that we're asking the Labor Board
to give us any help that they can to prevent it.
Q. All right. What did you do with this =piece of
paper after you obtained'it from Mr. Hausen's desk?
A. I went home then and typed it up on another
sheet of paper.
Q. Did you return to work that afternoon?
A. Yes, sir.
Q. Did you circulate this sheet of paper that you
had typed' up at home?
A. For the rest of that afternoon, yes.
Q. Who did you talk to about that? What employ-
ees?
Rocky Englebretson, Tom Helm, Wayne, and I
don't know what his last name was, Ed, somebody in
shipping, again, I don't know who their name was, and
Wally Hefner (phonetic), Wally Adamski, and Mack
Coleman, I-do believe it's his name, and Ted Davis.
Q. Did you say anything to any of these employees,
regarding signing of that petition?
A. I felt that I told him-
'Q. What did you say to them?
A. Okay, I said to them that the way the situation
was at Thurner, at the present, that I didn't feel that
not signing this petition would help them' any in keep-
ing'their jobs. That they should sign it, if they wanted
to stay. I couldn't guarantee that-
Q. Why did you say that to them?
A. Well, with the impression I got from Don, in
talking with Don, that the petition was going'to' be
used for other reasons than just to show to the Labor
Board.
Q. During the time you were passing this petition
out, did Don Hausen see you doing this?
A. Not that I know, personally. But, he had told me
he was going to come by and yell at me, and simulate
that he didn't know nothing about it, and he, was gon-
na give the impression to other employees about it.
That he was going' to bawl me out for passing it
around.
Q. Is that what he told you?
A. He already told me that 'he was going to yell at
-me, eventually, about passing it around.
Q. When did he say this to you?
A. Shortly after I had come back with the petition.
Q. From lunch?
A. Yes. Well, when I went home. It was after lunch.
Q. You typed up-in typing up this petition, did
you use Mr. Hausen's exact-the words that Mr. Hau-
sen had written up on his piece of paper? '
A. The only thing that I had changed, was like, an
of or a the. Otherwise, the basic text was his.
Colle further testified that upon Foreman Hausen's in-
structions he showed the petition to Tom Thurner who
copied the names signed thereon. He thereafter circulated
the petition the remainder of the afternoon and a part of
the next day when he advised Hausen that he wasn't get-
ting any responses. Hausen then instructed him to leave the
petition in his (Hausen's) desk and someone else, would
circulate it. Colle complied with Hausen's,instructions and
later saw Ted Davis, chief inspector for Respondent, with
the petition that afternoon and the next day. Colle further
testified that he gave an affidavit to the National Labor
Relations Board in the course of the investigation of this
case and that Don Hausen had asked him was he for or
against the Union; and that on three occasions Hausen
asked him to see his affidavit that he gave to the Board,
which he-refused to do on all three occasions. Hausen also
told him Bruce Buenning should have been fired because
he was late too often.
In circulating the petition Colle said he had asked Ted
Davis to sign it and the latter started to sign it but said he
had better go talk to the Thurners first. When he returned,
he (Davis) signed it and told him that he (Davis) could get
signatures from people Colle could not get. Davis admitted
Colle asked him'to sign the petition and he said he did not
want to get involved or have it interfere with his job by
something the Thurners did not approve, and that he
would , have to check that out. Davis further testified that
he asked Tom Thurner if his signing the petition would
interfere with the Company and Thurner said he could not
talk to him about that, that it would be an unfair labor
practice and it was his business what he wanted to do
about the petition. Davis said he thereupon signed the peti-
tion but he denied that he told Colle he would rather circu-
late the petition because he knew more people than Colle.
Rather, he said he wanted to talk to a few people himself
and he denied that he gave the names on the petition to
anyone. He also denied that Colle told him where he got
the petition and admitted that he asked. Tom Thurner for a
raise 6 months prior to July 16, 1975, and that he thereafter
received tt.
Colle's testimony is corroborated in part by Foreman
Don Hausen who admitted he saw Colle talking to Don
I?accagnella-in the plant and that he later asked Paccagnel-
la what Colle was talking about. Paccagnella said Colle
was circulating an antiunion petition. At that time, Hausen
said he did not know about the union interests or activities
of the employees. However, Hausen denied that he drafted,
suggested, or in any way initiated the preparation or the
circulation of the antiunion petition. Thereafter,,he went to
Colle and denied that he ever saw the petition, or ever
asked what names were on the petition, who refused to sign
it, and he did not tell- Colic to go and show or discuss the
petition with Tom Thurner. He stated that he did not fire
any employee for union activity and that the first time he
learned about the Union was when Respondent received
the first complaint from the Board.?
' I credit the testimony of Colle with respect to Respondent asking him
about his union interest during his employment interview because he ap-
THURNER HEAT TREATING CORP. 725
Employee Charles .O. Lentz testified that he was inter-
viewed for employment by Scott Thurner on January 20,
1975, when he was asked his opinion of unions. He said he
replied that unions had never done anything for him and
that Thurner nodded his head up and down, He was hired
on January 22 as a general laborer for a 90-day probation-
ary period at $3 per hour. On Monday, March 10, 1975,
Lentz said he attended a meeting at the Tosa Inn with Del
Wilson, Amos Raffeet, and Dick Thraves during which
they discussed organizing a union. He attended several or-
ganizing meetings at the Tosa Inn on March 14, 15, 17, and
18, 1975.
On March 20, 1975, Allan Mann approached Lentz at
work and said he needed some asbestos rope and he told
him he could find some in the maintenance department,
when Foreman Don Hausen called Mann.
Charles Lentz further testified that company -policy for-
bids a machine operator from leaving the machine when a
heating element is in it which can cause damage to the
melting oil and short the machine:-He acknowledged that
he left his machine running on one occasion and his super-
visor warned him never to do it again.
On March 25, 1975, Lentz said Foreman Randy Kocher-
er called his attention to the fact that none of the jeeps
were operating which he had observed. Kocherer then said
apparently someone put sandblast shot in the oil systems
of the deeps. Later that evening the employees were called
to a meeting by Tom and Scott Thurner during which Scott
Thurner advised that the jeeps had been sabotaged by
someone putting sandblast shot into the oil systems. He
held up a sign offering $1,000 reward for information lead-
ing to the arrest and conviction of persons responsible for
such act; that all employees were going to be required to
take a polygraph test; and that anyone refusing to do so
would be fired. He then named the people who were first to
take the test and he (Lentz), Dewey Webber, Bill Zacher,
and Don Kargus were told to report to work at 8 o'clock
the next morning to be taken for the test at 9 a.m.
Lentz took the polygraph test and he saw,Scott Thurner
that evening about 7 o'clock when the following conversa-
tion ensued:
A. He said he would like to apologize for not trust-
ing me, and by making me, to go down and take the
polygraph test. He said that I would be paid for the
time that I was sent home the night before. And, that
I would also be paid $10.00 for the trouble I took
going down to take test. I asked him if they had found
the person responsible, and he told me that be thought
they were getting close. He went on to say that there
peared to be testifying truthfully and his version corresponds to the testi-
monial version of the employment interview with employee Tom Whitney. I
also credit Colle's testimony with regards to the preparation and the circula-
tion of the antiunion petition I discredit Respondent's denial that it asked
Colle about his union interest as well as Foreman Don Hausen's denial of
knowledge of the employee's union activity or of the circulation of the
antiunion petition because Hansen did not appear to be telling the truth and
his version is contrary to the general tenor of all of the evidence of record
Moreover, I credit Colle's testimony for the additional reason' that he is still
employed by Respondent and testified in this proceeding pursuant to subpe-
na.
had- been threats made on employees , and that Thur-
ners would spare no expense in protecting me.
Q. Protecting you?
A. Protecting the employees . He was talking to me.
Q. Had you ever been threatened?
A. No.
At or about 4 p.m. on April 8,,1975, Lentz went to Tom
Thurner and asked him had he been receiving threatening
calls or had he been followed home. Thurner said yes he
had` received such calls and had been 'followed home on
three occasions. The conversation continued as follows:
A. He told me that Amos was being looked, for by
the Welfare people. That he had been divorced twice.
That he could have wife and kids in rags down in the
inner city. That he wasn't as fine a person `or respecta-
ble personas I thought_ he may be. That he did do a
good lob" on occasion, but that lie was embezzling
Company funds. And, that was the reason for his dis-
charge.
Q. Did he say how he was embezzling Company
funds?
A. Yes. He said he had been observed punching
Laura Giefen in,' for Laura Giefen while she-was in
changing her work clothes. Into her work clothes.
Thurner then stated that Amos Raffeet had been late 17
times in the last several months and that he was unreliable.
He continued his conversation as follows:
A. He said that Laura Giefen's-he considered
Laura Giefen's attitude atrocious. That she was' a
thundercloud and a bitch, and not a very pleasant per-
son to have around the shop. And, that was basically
why she was discharged.
Q. Did- he- make any reference to her allegedly
speeding in the parking lot?
A. Yes. He said that she had been observed travel-
ing around the parking lot two or three times;, you
know, at ahigh rate of speed. Squealing her -tires. That
was another indication of her tendency to fly into
rages and be a had egg. -
Thurner also said Respondent had gotten rid of,a bunch of
bad eggs and that the Union was a bunch of hoodlums and
gangsters who were responsible for having people killed,
and were out to cut his throat, and that they were trying to
take his business away from him by telling him how to run
it. Lentz said Thurner also asked him when was the first
contact made with the Union and he told him that it had
been talked about the week before Laura Giefen was dis-
charged, March 24, 1975; and he said if the Union wanted
the business he would sell them the, business, move down
the street, set up another heat treating plant,, and run-the
Union out of business. However, Tom Thurner denied
making the latter statement.' He said Allan Mann had a
bad attitude and' John Banner was discharged because he
was an alcoholic; and that Del Wilson was a child and
irresponsible but he felt responsible for him and would
8I discredit Tom Thurner's denial of'the above conversation and credit
the testimony of Lentz because Lenz was not discharged and his testimony
is consistent with the tenor of all of the credible evidence of record. ,
726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
take him back; and then he proceeded to tell in a general
way how various 'employees were being harassed. Lentz
said Thurner also told him he had received anonymous
telephone calls asking him did he know what acid was for,
and the caller indicated it was for his wife's face.
On April 10, 1975, Lentz said Ted (Glen) Davis came to
him and asked him if he would like to sign a petition
against the Union (Resp. Exh. 9) and he (Lentz) read it and
advised Davis that he did not want to sign it. On the next
day about the same time, while in the presence of Donna
Riley and Dewey Webber (nearby), he (Lentz) asked Ted
Davis if he could see the petition again and his testimony
continued as follows:
A. I asked Ted if I could see the petition again.
And, he said, certainly. And, handed me the petition. I
read it over several times. And, I asked him, are you,
you know, is this your petition. And, he said it was. I
asked him, well, what are you going to do with it. He
said, well, it was for his own personal use. It was Just
to demonstrate, you know, who was going to play on
the team, who was interested in doing, you,know, a
job for the Thurners. And, that it was, you know,
along that line. I said, well, what use do you-or, what
do you have-what use can this be of to you. And, he
told me that he had a lot of say-so around the shop.
That he could get people raises. That he could, you
know, put in a good word with me. For- me.
Lentz further testified that during his interview for em-
ployment Scott Thurner explained the 90-day probationary
period and advised him that during such period more than
two absences constituted grounds for discharge. He started
work and thereafter signed a union authorization card on
March 22, 1975. He told Don Paccagnella, Ed Muraczew-
ski, John Kuchenreuther, and Bruce Buemmng where to get
authorization cards in his jacket pocket after the shift. He
also spoke to Tom Whitney and had him sign a card in his
automobile with his pen and Whitney mailed the card to
the Union. He said when he asked Davis was he going to
give the petition to the Thurners, Davis said no, it was
simply for his own personal use. When he asked Davis that
same question on another occasion, Davis gave no re-
sponse. Lentz explained that when he stated in his affidavit
that Respondent knew about the antiunion petition he was
actually assuming that Respondent knew about it. Davis
did not dispute Lentz' testimony.
Employee William (Dewey) Webber was employed by Re-
spondent on July 20, 1974, until he voluntarily terminated
his employment on June 18, 1975. He worked for Respon-
dent as a furnace operator and was at work on March 25,
1975, when Foreman Randy Kocherer approached him
and said, "In case you haven't noticed or haven't been
informed, someone has put sandblast shot in the crank
cases of the forklifts." He corroborated Chuck Lentz' testi-
mony with respect to Respondent calling a meeting and
advising of the, sabotage and the requirement of all em-
ployees to take the polygraph test. When he reported to
work the next morning, March 26, 1975, Scott Thurner met
him and asked him to come to the office with him, he
wanted to talk with him. They went into the office and the
following conversation ensued:
A. Okay. He - asked he asked about this other
trouble. Not referring to the forklifts. And, he wanted
to know-well, -he accused me of being a ringleader.
And, excuse me. My mind is dust blank. He accused
me of being a leader of this other trouble. I told him I
wasn't. And, he said, yeah, they're all walking out
now. They're out walking. And, he asked about-he
referred to this one guy as a rabble rouser. Wanted to
know what his-
Q. Did he mention his name? Or, identify him in
some way?
A. I don't think he-I don't think he said his name.
But, identified him as being-working through labor
pool. His name was Dick, -that's all I knew.
While he was in the office with Scott Thurner, Webber
said the telephone rang and Thurner answered and, said,
"Okay, fire him, I'll take care of him." After hanging up
Thurner said, "there's another one, Robert Rau," he said
he did not like to do this, and asked the secretary in the
other room to bring Rau's record. Thurner then showed
him (Webber) that the timecards of Robert Rau's absences
and days tardy. Webber's testimony continued as follows:
A. He said he didn't like to do these things. He
said, I'm not after these people. He says-he asked
me, why should I want to fight them. Why do I want
to fight them. He says, you made enough money here
with profit sharing. He says, if you put in the hours,
you can make a lot of money here. And, during the
conversation, he just-he was telling me, like, about
some of the ownings of the Company, or some of the
owmngs of the Thurners.
Q. What did he say? ....
A.. Yes. He was telling me there was no mortgage
on the building that Thurner Heat Treating is located.
They also own Jack White Ford. He says, there's no
mortgage on that building. He says, they have very
good lawyers as far as if they're gonna fight this thing.
He mentioned them renting out the top floor of the
Marine Plaza, or something like that ....
A. He said in order to get all this trouble solved, he
would be willing to spend, like, thousands of dollars,
to get this whole problem solved. He says, we might
have to take a couple people back; But, how long do
you think they'd last. He says, I'd give them the, dirti-
est, sloppiest jobs I could find. And, he said, he posed
the question to me, what shift don't you like to work.
Or, he says, you don't like working third shift. Some-
thing like that. -And, I agreed with him. He says,
well-
Q. Did he say anything else to you in this conversa-
tion?
A. Near the end of the conversation, he asked me,
or he said, don't fight me he says, why don't you play-
be on our side. Play ball with us.. He says, you don't need
a Union in here. Our doors are open all the time; to get
your problems solved. And, somewhere in the course of
the conversation, I mentioned there would be a meet-
ing in the afternoon. And, I didn't specify what kind
of meeting. And, he wanted me to call him before the
meeting, to let me know-to let him know how I stood.
THURNER HEAT TREATING CORP.
How I felt about this other trouble, where my allegiance
would stand. [Emphasis supplied.]
Q. Is that what he said to you? Are those the words
he used to you, as best you can recall?
A. Well, yes.
Webber said he did not take the polygraph test because
Scott Thurner told him he did not have to take it because
he did not believe he did it anyway. After he went home
that day he called Scott Thurner and they held the follow-
ing conversation: -
Once I was connected with him, I told him, I had
discussed it-we discussed it, referring to Mary and
myself, my wife, and we've decided it would be best to
play ball with you. To go along with the Company, I
believe, is what I said. And, he said, okay. And, I also
mentioned I would like to speak to him that af-
ternoon, again . And, he said, okay, come in early.
That was about the end of the conversation.
When Webber reported to work that afternoon, he went to
the office of Scott Thurner and they had a conversation as
follows:
A. Well, I told him I couldn't afford to live at 1975
prices. And, that I would like a raise. And, he said,
okay, you'll get it. Then, he mentioned he had to go
out of town for a week.
Q. Later that evening, did you have another con-
versation with Scott Thurner?
Webber said he then asked Thurner who was being
threatened and he replied Randy, Tom, and himself. He
also stated that some people were being threatened and he
would like for him (Webber) to find out who was being
threatened and who was doing the threatening.
In mid-April 1975, Webber said Ken Colle approached
him at work and asked him if he wanted to sign a petition
against the Union. He said he read it but did not sign it
and Colle told him it was his petition. He asked Colle
hadn't he (Colle) signed a union card and Colle said, "Yes,
so had some other employees." Bob McGill was present
during this conversation. He told Colle the employees were
signing they petition to keep their jobs and, if he had to sign
it to keep his job, he would quit first. - -
On the next day in the,presence of Chuck Lentz and
Donna Riley, Ted Davis approached Webber and asked
him if he wanted to sign the same petition and he returned
it, declining to sign it. This was the first time- he had ever
seen, any kind of petition circulating. He admitted that he
had never,heard any person from management mention
the Union. He signed a card and talked to other employees
about the Union. About the last of March or the first week
in April 19,75, Foreman Randy Kocherer approached him
and a discussion about the Union ensued during which he
described unions as socialites . Webber said he expressed
disagreement with Kocherer, adding that he thought
unions were good in some instances and could benefit
some companies. Kocherer then said he did- not think a
union was necessary at Thurners.
Webber said he terminated his employment with Re-
spondent because he felt he was being persecuted and ha-
rassed bybeing taken off regular jobs and assigned to jobs
727
for beginners, and that he and Foreman Randy Kocherer
did not get along anymore. Finally, he was laid off for 5
days in the last part of May for driving a forklift too fast.
Webber said 2 days prior to this proceeding Ken Colle
told him he (Colle) did not write the petition. He did not
tell him what changed his mind. -
Scott Thurner denied- discussing the Union with Webber
or accusing him of being a ringleader or troublemaker or
stating that they're all out walking, and Respondent was
willing to spend thousands of dollars to solve this trouble
(union). He denied that he said Respondent might have to
take a couple of people back but how long did he think
they would last; that they would be given the dirtiest, slop-
piest job; and that he did not ask him whose side he was
on, where he stood, or asked him to play ball with Respon-
dent. He categorically denied he asked Webber to find out
who was doing the threatening and who was being threat-
ened.
Scott Thurner further testified that he coordinates the
work and that he tells applicants for employment that Re-
spondent is not a union shop and asked them if they still
wanted to work for him, because he hired a man a year ago
who quit after working 1 hour because he learned Respon-
dent was not unionized. Such abrupt terminations cost the
Respondent $25 for bank record (payroll) changes. He
could not give a reason for the question about the Union
on the application except that it had been used for a long
time and was always on the application. He continued to
testify as follows:
Q. What is the policy as far as absenteeism is con-
cerned, in the probationary period?
A. Okay. Absenteeism. Last year, we had a hard
time hiring people. People were very scarce to hire in
this Milwaukee area. And, we really had a difficult
time. So, what we did, we had a two day period, if a
man missed two days in his ninety day probationary
period, he was dismissed. If he was tardy, I'm not sure,
I think it's two days, he was possibly dismissed. Dur-
ing this short period of time, where for six, eight
months, when it was so hard to find people, we did-
we were kind of lax on those times.
Q. What six, eight month period are we referring to,
sir?
A. From November to March. Oh, the first two,
three months of this year.
Q. From November of '74 to '75.
A. Um-hum. At that point, we saw more potential
in hiring people. We had more applicants.
Thomas Thurner testified that he recalled a conversation
with Dewey Webber after Respondent was served with an
unfair labor practice charge following March 22, 1975,
wherein Webber mentioned the circulation of the anti-
union petition and the fact that a number of people who
had signed union authorization cards had also signed the
petition; and that they were hypocrites and he would not
be one of them. Webber did not mention any names to him
at the time. He also said Webber told him he (Webber) was
for the Union and he responded that that was none of his
business. Webber voluntarily terminated his employment
with Respondent. Thomas Thurner further stated that he
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not recall or could not remember whether he told Web-
ber he knew about the Union when Webber told him about
the petition . Nor could he remember which conversation
was first, the one with Colle or the one with Webber.9
Dischargee Robert Rau was interviewed for employment
by Respondent for employment the first week in October
1974 . During the interview he indicated on his application
that he had an honorable withdrawal card from Brewery
Workers Union and also, possibly an honorable with-
drawal card from United Auto Workers Union.
On or about March 24 , 1975, Rau said he and employee
Ken Colle had a conversation during the break period in
the plant, during which Colle explained to him that the
employees were interested in organizing a union. He ex-
plained that the United Auto Workers had been contacted
and showed him a UAW authorization card, which he gave
him to complete . Colle explained that quite a few people
had been fired and urged him to be careful . He (Rau)
thereupon went into the men 's room , read and signed the
authorization card , and returned it to Colle. Colle had also
told him that the card was a form of protection against
being terminated by Respondent.
Rau further testified that he had a conversation later
that day with fellow employee Ralph Andersen , who ex-
plained the organizational procedure to him and gave him
five blank authorization cards along with preaddressed and
prestamped mailing envelopes . On the following day he
gave and explained union authorization cards to Glen Gus-
tafason who said he was not interested , and to Keith Ja-
cobs who said he was interested and did not want to be
involved but accepted a card and said he wanted to think
about it. Both Gustafason and Jacobs signed the cards.
About 11 a.m. on March 25, 1975, Foreman Michael
Adamski approached him on the forklift and advised him
that Tom Thurner had pulled his timecard and he (Rau)
was through . Adamski also said , if it had been up to him,
he (Rau) would have been fired Monday (March 24 , 1975).
His conversation with Foreman Adamski continued as fol-
lows:
A. I said, why? What happened. I said, what do you
mean , he pulled my timecard. And he said, he pulled
your timecard, he saw you were late, and you're
through. You know, turn in your helmet and glasses
and leave.
9 I credit the testimony of William (Dewey) Webber regarding his conver-
sations with Scott Thurner about the discharge of Robert Rau, about how
far Respondent was willing to go to solve the union problem, about asking
Webber whose side he was on and requesting him to find out who was doing
the threatening, and about accusing him of being a ringleader or trouble-
maker, not only because I was persuaded by his demeanor that he was
testifying truthfully, but also for the following reasons Webber no longer
has a job interest with Respondent to induce him to testify in favor of
Respondent; Respondent obviously trusted and favored Webber as evi-
denced by it granting him a raise after the conversation held with Scott
Thurner, and by Respondent exempting Webber from taking the polygraph
test, and because, as a practical matter,'Webber's account is graphically
consistent with the creditable evidence of Respondent's conduct throughout
the record For some of the same reasons, I also credit Webber's testimony
with respect to the conversations he had with Randy Kocherer during the
last part of March or the first part of April, and for the additional reason
that his testimony in this regard is not disputed in the record Kocherer did
not testify in this proceeding.
Q. Did you say anything to Mr. Adamski after
that?
A. I told him, I says, I said, Mike, you know what's
behind this. It's Union organizing campaign. I said,
the reason this Company has grief is because of their
hiring and firing practices. That's why they have pro-
duction problems. I said, you're as much subject to it
as we-you in supervision are as much subject to it as
we employees are. I said, it's just-I said, frankly, I
expected it. Everyone that worked there expected to
be fired. I said, as a friend, Mike, why don't you look
for a new job.
Employee Rau admitted he was an hour and 20 minutes
late on Monday and 6 minutes late on Tuesday, but he said
he had been previously instructed to punch in between 6
and 8 a.m. because there was no set or definite starting
time for the maintenance personnel not associated with
production, since they did a great deal of overtime. He
further stated that 3 months prior to his discharge he had
not received any reprimand or warning regarding tardiness
nor had he ever been told about company policy regarding
tardiness. Starting times were not observed by Respondent
but he acknowledged that as a member of a group of three
or four employees, they had been warned of disciplinary
action for excessive tardiness in January 1975.
With respect to working hours Rau continued to testify
as follows:
A. Briefly, he said we're all on first shift, you know,
with the changing hours. He said, I am now a mainte-
nance foreman . That is when we were instructed, he
said, you have been late and tardy and so forth, ab-
sences, he said, we're gonna work straight days now. If
you want, you can, start at 6:00 o'clock in the morning,
since the work day ended at 4:00. Thereby gaining an
hour and a half of overtime every day. At 'the begin-
ning, you know, of the day, rather than end of the day.
An hour and a half extra. You can start as early - as
6:00, and start as late as 8:00. You guys got to be here,
there's a lot of work to do.
Foreman Adamski did not say if the' employees did not
comply with the work hours he outlined they would be
subject-to disciplinary action or termination.
About the last' week in January 1975 Rau said he ap-
proached Scott Thurner and requested a raise and Thurner
said he would talk with his foreman, Michael' Adamski.
After talking with Adamski, his request for a raise was
denied for tardiness and absenteeism (Resp. Exh. 12, time-
cards.) Between October 1974 and the time of his discharge
on March 25, 1975, Rau was absent 5 times and tardy
approximately 55 times according to counsel for Respon-
dent. Rau further stated that when he walked in late on
March 24 Foreman Adamski did not make any comment
and did not give him any reprimand because he had called
in before his arrival. He was advised by-Foreman Adamski
to report to work on March 26 at 6 a.m. However, he ad-
mitted he did not punch in until 6:13 a.m. on March 26. He
further stated that when he passed out the union cards in
the plant he did not think anyone from management ' saw
or overheard his conversations with the employees.
THURNER HEAT TREATING CORP. 729
Supervisor Michael Adamski testified that he was the
supervisor of Robert Rau during the year 1975; that Rau
was excessively tardy or absent about 56 times; and that he
spoke to Rau on several prior occasions about his atten-
dance and timeliness. He denied that he gave Rau permis-
sion to report for work at a later hour than the usual re-
porting time and added that no other employee was
extended such a privilege unless he worked until 1 .or 2
o'clock the next morning. He further stated that Rau was a
poor worker who tried to avoid work. Foreman Adamski
said he recalled telling Rau in late February 1975 that he
had spoken to Scott Thurner about a raise for Rau, and
that he opposed such a raise because Rau did not deserve it
at that time.
Foreman Adamski further testified that Rau reported to
work late on March 24, 1975, but called in and said he
overslept. He was late on March 25 and he warned him
about his lateness. Rau was late again on March 26, 1975,
and he discharged -him. He further stated that he did not
speak to any employees about the union activity but he did
observe some employees passing out union literature in the
parking lot and he did not discharge Rau for union activity
for which he said he had no knowledge. He said some sab-
otage was done to the equipment before and subsequent to
Rau's discharge; and that extensive damage was done to
all seven forklifts and one truck in which Respondent de-
tected the shot before damage was done. He acknowledged
that he never told Rau if he were late one more time he would
be discharged, and he never suspended or took any discipli-
nary action against him for lateness or absences prior to his
discharge. However, he maintains that Rau was terminated
solely for excessive tardiness and absenteeism. He recalled,
but did not further substantiate, terminating one other em-
ployee (Rich Richardson) this year for the same reason.lo
Dischargee Garth Fletcher testified that he was employed
by Scott Thurner during the latter part of November 1974
as a heat treater under the supervision of Foreman Don
Hausen. He learned about the union activities of the em-
ployees on March 21, 1975, as he was leaving the plant and
ran into Laura Giefen, Amos Raffeet, and Allan Mann on
the parking lot, where they told him they were fired for
organizing the Union. They then asked him would he join
the Union and told him about a-meeting the next Saturday.
As they were talking he observed Foreman Hausen walk
by them and give them a dirty (angry) look. As he and
John went to George Mikowski's car, Foreman Hausen
walked by and looked in the direction of them with an
angry expression. He reported to;work on March 24, 1975,
about 7:20 a.m. and found employees Amos Raffeet, Lau-
ra Giefen, and Allan' Mann on the parking lot passing out
union authorization cards. He went over to them and
signed a card and returned it to Amos Raffeet.
At the hearing he identified his card and said he did not
see any management people at the time he returned his
card, but as soon as he went into the shop he noticed his
timecard was missing from the rack. Although Ken Colle
and Rocky Englebertson signed authorization cards they
were nevertheless permitted to punch in for work. He
(Fletcher) said to Foreman Hausen, "Well, if I'm fired
what about those two? and, he said, because of your extra-
curricular activities and being 3 minutes late." Fletcher
said he had been absent about 3 or 4 days for illness and
called in on all but one occasion when he was in an auto-
mobile accident and could not call in; and that he has been
10 or 15 minutes late about five times. He said he had
never been given a warning about poor attendance or time-
ly attendance by the Respondent. About 2 weeks before he
was terminated, Foreman Hausen told him he was one of
the five people he could trust to work unattended and that
he did a good job but was a little slow. Fletcher's timecards
(Resp. Exh. 13) show he was absent 5 times, late 19 times,
and left early 5 times. The parties stipulated that the time-
cards are correct.
With respect to Garth Fletcher's discharge, Foreman
Hausen said he had never observed Fletcher talking with
Mann, Giefen, Raffeet, or any other group of employees in
March. He described the discharge of Fletcher and the ca-
sual circumstances thereof as follows:
A. Work habits, attendance and tardiness.
Q. Did you discuss these work habits, attendance
and tardiness with Mr. Fletcher prior to his discharge?
A. Yes, I did.
Q. Do you recall those conversations?
A. Dates, no. But, every time he came in late, I'd
talk to him about that. If he ever had an unexcused
absence, I'd warn him about that. His work habits, I
talked to him constantly about that."
Employee Donald Paccagnella was employed by Respon-
dent in September 1974 as a setup man in the induction
section under the supervision of Foreman Don Hansen. He
voluntarily terminated his employment with the Respon-
dent on April 22, 1975. However, he testified that, on one
Friday afternoon between 3:30 and 4 p.m. in March 1975,
as he left the shipping room he met employees Garth
Fletcher, Allan Mann, Amos Raffeet, and Laura Giefen
just outside the door. Fletcher told him these people were
trying to organize a union for which they were fired and
asked him if he desired to attend a union meeting the next
day. He did not see any persons from management during
their conversation. On or about March 27, 1975, a fellow
employee by the name of "Jeff" asked him if he wanted to
fill out a union authorization card and he said he would
and did read, sign, and return it to employee Ralph Ander-
sen after work.
On or about April 10, 1975, employee Ken Colle asked
him if he wanted to sign a petition against the Union
(Resp. Exh. 9) and he told him yes he would because there
was no sense in getting fired over the matter; and he there-
upon signed it and, a few minutes later, changed his mind
and crossed out his name. A few minutes later, Foreman
Don Hausen asked him what was Ken Colle passing
around and he told him it was an antiunion petition and
10 With respect to Respondent's enforcement of timely attendance, I " I credit the testimony of Fletcher and Hansen because, although Hau-
credit Rau's reason over that of Foreman Adamski, because it is'essentially sen testified that he had warned or spoken to Fletcher about timely atten-
supported by the attendance records of other employees and employee wit- dance, he did not say he seriously warned or reprimanded Fletcher as
nesses in this proceeding. Fletcher probably meant.
730 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Hansen said, "oh, oh," and asked him if he had signed it
and he said, "No." Hansen then said `you should have be-
cause if the Union gets in the plant all the benefits will stop."
Later on one afternoon, March 27, Ted Davis asked Pac-
cagnella why he did not sign the petition and he replied it was
not something he thought he should have to do. Davis then
told him he (Davis) was closer to the Thurners than most
people thought, and that he (Paccagnella) was one of the
people the Thurners were depending on, and if he did not
sign the petition, they would think less of him. Paccagnella
said he then told Davis he would probably be fired for not
signing the petition and Davis lust laughed, and said, "No,
they wont do that." A few days later Colle asked him if he
had reconsidered signing the petition and he said "No." Fore-
man Hausen thereafter told him to report for work at 7 a.m.
on Saturday, the next day, and to be sure to punch out for
lunch, which he had not done before. This is the first time
he had been ordered to report for work on Saturday but he
did not report.
On Monday, April 21, 1975, nothing was said to him
about not reporting on Saturday. However, on the next
day, April 22, when he reported to work he noticed Chuck
Lentz working the first shift and another employee named
Ed showing another induction machine operator how to
operate the machine. He went to Foreman Hausen and
asked him what was he to do because he had no work and
Hausen said he was not sure but he could probably go to
the other end of the shop; that he needed someone to work
Saturdays in induction and he (Paccagnella) could work in
induction until he could find something else for him to do.
Paccagnella worked until 11:30 or 12 and he said he quit
because he was advised he would be transferred from the
job he knew how to perform. -
Paccagnella stated that loading or unloading the fur-
naces manually and by crane is carried out at- the north
end of the plant; that the furnaces at that end get hot and
steam emits from inserting the hot metal in oil, and the
area is hotter than the south end where he worked. Hausen
never mentioned a union. Paccagnella said he signed the
petition as "Don Paccagnella," although on more formal
and official documents he generally signs his name "Don-
ald Paccagnella" (Resp. Exhs. 15, 17, and 18).
Foreman Hausen denied that he ever told Paccagnella to
sign the antiunion petition; that if the Union gets in the
plant all benefits will stop; and he maintained that he did
not transfer Paccagnella to another job or refer by pointing
to the other end of the plant. He acknowledged that he did
ask him to work on Saturdays and that Paccagnella refused
to do so, so he started training another man to be induction
setup man and told Paccagnella he would work in induc-
tion until he found something for him to do.12
Employee Eugene LaMarch, a laborer working under the
supervision of Foreman Hausen, testified that on March
24, 1975, he walked into the shop and Foreman Hausen
told him and fellow employee Tony to go out just off the
12I do not credit Foreman Hausen's denial that he told Paccagnella to
sign the petition because I was persuaded by the demeanor of both witness-
es that Paccagnella was telling the truth and Foreman Hausen was not, and
because Paccagnella's version is consistent with the total credible evidence
of record, with respect to Respondent's antiunion conduct
parking lot and find out what was the purpose of the con-
gregation of employees. They went out to the parking lot
and Amos- Raffeet informed them that they (the employ-
ees) were trying to organize a union. LeMarch and Tony
went back to Foreman Hansen and told him the employees
on the parking lot were trying to organize a union. Hansen
then said he figured that or.had a hunch that that's what
they were doing. LeMarch further testified that, in April
1975, employee Ken Colle asked him to sign the petition
against the Union and he told him he knew how long he
(LaMarch) had been working there and he did not sign it.
Colle tried several other times that day to get him to sign it.
A few days later Ted Davis told him if he would sign the
petition against the Union he (Davis) would see about get-
ting his safety glasses. - LeMarch said he then signed the
petition without reading it because he cannot read. On
cross-examination LaMarch admitted that Foreman Hau-
sen had told him about January 10, 1975, that he was
trying to ascertain which insurance company would pay
for the safety glasses.
Dischargee Robert (Bob) Hardtke testified that he was
employed by Respondent in February 1975 as a general
laborer and worked under the supervision of Foreman
Hausen until March 24, 1975. When he reported for work
at noon, instead of 7:30 a.m., on March 24, 1975, he stated
he was late because he had car trouble. He further testified
that he called the plant about 8 or 8:30 a.m. and again
about 11 a.m. and informed the office girl he would be late
as a result of car trouble and would be in soon . The girl
said she would tell Foreman Hausen. When he reported to
work at 12:18 p.m., he asked Foreman Hausen, about
12:48 p.m., what work he was to do and Hausen said he
was to work out front with Dave. On that afternoon em-
ployee Colle asked him how he felt about the Union and he
said he did not care either way. Colle then asked him if he
wanted to sign a union authorization card and he said,
"Yes." About 3:30 or 3:45 p.m., Colle gave him a card
which he took back to his work station and later proceeded
to fill it-out about 4 p.m., when he suddenly turned around
and discovered Foreman Hausen over his shoulder with his
timecard in his hand. He tried to hide the card but he said
Hausen obviously saw the card because it was in plain
view, although he could not be sure. Hausen then told him
he did not have to punch- out because Respondent no lon-
ger needed him, and that his employment was terminated.
He asked Hausen why, and the latter said no reason, slow-
down in business, lack of work. Hausen did not mention
his coming in late that morning nor his attendance or work
performance record. -
Hardtke further testified that he was off from work 1 day
to register for school, with permission from Hausen. He
acknowledged that he did sign and turn in a union card to
the Union after he was terminated., Between February 11
and March 24, 1975, Hardtke admitted on cross-examina-
tion, he was absent two times, late eight times, and left
work early two times. He admitted that when he was em-
ployed by Respondent he was told about the 90-day proba-
tionary period which depended on attendance . However,
on the day he was discharged he said he asked Foreman
Hauser did the girl give him his message about being late
and he said, "Yes."
THURNER HEAT TREATING CORP.
Foreman Don Hausen said he discharged Robert
Hardtke because he was not working out after about 6
weeks' employment. He said Hardtke was small and slow
and he (Hausen) usually would have to put another man
on the job with him. He stated that he had never seen
Hardtke engaged in any union activity nor observed him
sigmng any (UAW) card.13
Dischargee Bruce Buenning testified that he was em-
ployed by Respondent as a machine operator and an in-
spector on February 3 and was terminated May 20. He last
worked under the supervision of Don Hausen and also un-
der the leadership or supervision of Ted Davis, who he said
gave him orders, work assignments, trained him, gave him
overtime, and gave him permission to leave early although
he usually asked Hausen for permission to leave early or
for time off. Buenning said around the end of March 1975
fellow employee John told him he was going to get some
union authorization cards from employee Chuck Lentz
when he came to work, and Buenning asked John to get
one for him too. John did get him a card and gave it to him
around 4 p.m., which card he read, signed, and mailed to
the Union.
On the afternoon of April 10, 1975, employee Ken Colle
approached him (Buenning) and Ted Davis with a petition
against the Union, which he asked them to sign. Ted Davis
asked Colle did the Thurners know about the petition and
he said, "Let's just say that I talked to some people about
it." Both he and Davis refused to sign the petition, Davis
saying he would have to check into the matter. About 30 or
60 minutes later, Buenning said he walked past Colle and
Davis, and Colle called to him and asked if he was going to
sign the petition and he said, "No." About half an hour
later, Davis asked him why was he not going to sign the
petition and he told Davis he did not want to get involved.
Davis then said he°had "heard some talk around the shop
that you're [Buenning] one of the guys that might be around
here for a while, so why not sign the petition so as not to
jeopardize your future. " (Emphasis supplied.) He (Buen-
ning) said he did not want to get involved and did not see
why he had to sign it . The next day, Colle came to him and
said, "Bruce, I have to ask you one more time, are you going
to sign the petition?" And he said, "No." Colle then said,
"Well, it's been nice knowing you Bruce," and walked away.
(Emphasis supplied.) About a week later, Davis just ca-
sually said he had been running around trying to get peo-
ple to sign the petition.
About 8:30 a.m. on or about May 20, 1975, Foreman
Hausen came near him and called him and he went to
Hausen who told him, "We've decided to let you go."
Buenning asked Hausen why and Hausen said, "Well, you
just haven't worked out in inspection or induction, you can
ask anyone, ask Ted Davis." Hausen told him to punch
out. After he punched out he went to Davis and initiated
the following conversation:
A. I walked up to Ted, and I said-told him that I
13 1 do not credit Foreman Hausen's denial that he did not observe
Hardtke engaging in union activity because it is against the testimony of
Hardtke and the weight of all of the evidence of record Even if Hausen did
not observe Hardtke engaging in union activity, I do not construe such
denial as a denial of knowledge of Hardtke's union activity
731
had been fired. And, he said, you've been fired? And,
I said, yes. And then, he asked again, they fired you?
And, by the tone of his voice, I could tell he was sur-
prised. And, then, he told me that he had been satis-
fied with my work. I asked him if he'd been satisfied
with my work, and he said that he had been satisfied.
And, he said, if you-he told me that I had good work
habits and that if I ever needed a reference, he'd be
happy to give me one. And, then I left the plant.
Buenning further testified that, when he worked in the
induction department, Foreman Hausen neither com-
plained nor complimented him on his work. Don Paccag-
nella told him Hausen was pretty upset with him (Paccag-
nella) because he told Hausen he was not going to work-on
Saturday. Paccagnella also told Buenning he had signed
the petition against the Union, reconsidered the matter,
and then crossed out his name.
Foreman Hausen testified that he discharged Bruce
Buenning because he could not satisfactorily perform any
of the jobs for which Respondent tried to train him. He
said when Buenning was transferred from induction to in-
spection, he told Buenning it was due to his being too slow.
Buenning worked with Ted Davis. Hausen said he never
observed Buenning engaging in any form of union, activity.
Dischargee Del Martin Wilson was employed by Respon-
dent on or about September 3, 1974, until he was terminat-
ed March 20, 1975. Wilson testified that, during his inter-
view for employment by Tom Thurner, Thurner told him
there was a umon in the plant and the men had gotten rid
of it; that Respondent was a family-type organization and
if he (Wilson) had any problems, to come to him immedi-
ately and Respondent would see if it could take care of
them. He then asked Wilson if he wanted a union and
Wilson said he did not know. On March 3, 1975, Wilson
said he accidentally spilled some cutter hooks on the floor
and refused to pick them up on his own time, which was
about 12 o'clock, because Randy Kocherer told him to for-
get about the hooks and sent him to another job. His fore-
man kept telling him to pick up the hooks on his own time and
eventually he said, if he did not pick them up, he would be
fired., On the next day, March 4, 1975, he was fired by
Foreman Kocherer. He went,to the office of Tom Thurner
where Kocherer joined them, and, after an hour's discus-
sion, he was rehired on a month's probation:
On March 14, 1975, Wilson said he,expressed his interest
in the Union with Chuck Lentz at the Tosa Inn. On March
19, between 6:30 and 7:30, Charlie Brah told him about the
union discussion among the employees and he told Brah he
knew about it. During the lunch break, he had a discussion
about the Union with Amos' Raffeet and Allan Mann.
Mann was talking loudly and he saw Foreman Kocherer
was standing at his desk so he told Mann riot to talk too
loud. He had a conversation about the Union with Dewey
Webber. He had another discussion about the Union on
March 19, 1975, with Charlie Brah, while Foreman Koch-
erer and Bob McGill stood 50 to 75 feet away. At another
time that day when he and Charlie were discussing the
Union, Kocherer was 25 feet away looking at them. On the
next day, March 20, just after he punched in (4 o'clock),
Foreman Hausen approached him and took him over to
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
some parts called "yokes," and asked him if he had sand-
blasted them. He said he might have but he was not sure
because he did not finish the job on the previous night but
noted that the job was then finished and "shots" were over
the top of the box. Foreman Hausen asked him what he
intended to do about it and he said there was nothing he
could do about it. Hausen then said he (Wilson) was fired
and insisted that he get out of the plant immediately. He
asked Hausen to write the reason for his discharge on his
card but Hausen refused to do so, although his timecard is
now so marked. Wilson said he then went to Foreman
Kocherer and asked him what the real reason was for his
discharge and Kocherer told him to call him up that night
and he would tell him. However, he did not call Kocherer.
The next day Wilson said one machine was defective and
the shot would come out of it. Whenever he told Kocherer
about it he would simply say take a shovel and put it back
in, that that particular machine was going to be replaced.
Wilson said he was also fired by Respondent in January
1975 for sandblasting some parts Kocherer had told him to
sandblast, which parts Kocherer later said he did not tell
Wilson to sandblast. He was momentarily fired by Kocher-
er and then rehired by Don Hausen who told him to go
back to work. He signed a union authorization card on
Monday or Tuesday of March 24 or 25, 1975. He said he
did not believe management knew about his union activity
before he was fired. However, since he was fired and sev-
eral employees were thereafter fired also, he is now led to
believe that he was fired for his union activity.
With respect to the discharge of Del Wilson, Foreman
Hausen testified as follows:
Q. Can you relate to us the reasons for Mr.
Wilson's discharge?
A. Yes, I can. The morning prior to his discharge, I
found a box of a customer's parts full of steel shot, a
shot that's used in a sandblaster. And, I checked with
the first shift sandblaster, to see if he ran the parts. He
claimed that he did not. That evening, when Del came
to work, I asked him if he sandblasted those parts. He
told me that he did. I asked him if he knew he put all
that shot in there. He said, yes, that he was the one
that left the shot in there. At the same time I was
talking to him, he was running a sandblaster. An auto-
matic machine. On a manual cycle. I asked if he knew
that he was supposed to only run it on a automatic
cycle. And, he told me, yes. At that time, I discharged
him.
Foreman Hausen said the second-shift foreman told him
Wilson spilled hooks on the floor.14
Dischargee Ralph Andersen was employed by Respon-
dent in August 1974 and terminated April 7, 1975. He was
interviewed by Tom Thurner and started to work at a sal-
ary rate of $3 an hour and 90 days later was increased to
$3.30 per hour, then $3.50 per hour, and thereafter to $3.65
14 With respect to the question as to whether Buenning's machine was
being operated properly, I do not credit Foreman Hausen's version because
his testimony has been discredited throughout the record, and it establishes
a pattern of untruthfulness insofar as his discharge of several employees in
late March is concerned.
per hour. During his interview for employment by Tom
Thurner, Thurner asked him if he had any prior experience
with unions and he said yes, that it wasn't too good. Thur-
ner then said, "Well, we have had a union in the shop in the
past, and it's no longer in the shop. And it was a bitter fight
getting it out." (Emphasis supplied.) On March 21, 1975,
between 3:15 and 3:30 he went to Allan Mann and said, "I
heard you got fired," and he (Mann) said, yes, for doing his
job, but he actually believed it was for organizing the
Union. Mann advised him of a union meeting scheduled
for the next morning. Later that day, Andersen informed
Ken Colle of the union meeting. Andersen attended the
meeting and signed a union authorization card and turned
it into the Union along with the cards of Rocky Englebret-
son, Robert Rau, Bob Hardtke, and Jeff and Don Paccag-
nella.
On March 24, about 7 a.m., Wilson said he told Ted
Davis hello and the latter said, "Some of the guys that were
discharged last week are out front passing out literature."
They both smiled and went to their jobs, He was told by
Foreman Hausen he was next to take the polygraph test.
He reported to the tester and described the procedure as
follows:
A. Prior to the test, it was, just he would go over the
questions and I would, answer them for him there. Af-
ter the first test, during the break, we chatted for
about fifteen minutes.
Q. What did you chat about?
A. He says, you did kind of poorly on this test. He
said, were you kind of nervous. I said, yes, I was. He
wanted to know why. So, I said that 1 ,was waiting for
a few zingers about organizing, because we were orga-
nizing a Union at Thurner. And, I thought - that he
might have some questions about it. On the test. He
said-
Q. Go ahead.
A. He said, no, he wouldn't ask that kind of ques-
tion. That he wasn't hired to ask questions about that.
After that, we took the second test.
Q. How did you do on the second test, if you know?
Or, if you were told.
A. After it was done, he says, well, you did a lot
better this time. He said, but there was still one ques-
tion you were a little bit shaky on. And, he said that
the question was something to the effect, if you have
any personal knowledge of who did the sabotage. He
said, you're a little shaky on that yet. And, I says, well,
I can't see why. He says, do you have suspicions. I
says, yes. He says, well maybe it showed up. So, after
that, we went back to his office. We talked a little bit.
Q. What did you talk about?
A. He was complimenting me. He said he could tell
just by talking with me that I was brought up right.
That I had a good sense of values. And, afterwards, I
believe; I called up the shop to get a ride back.
On or about April 7, 1975, Scott Thurner took him to the
office of Robert Thurner where the following conversation
ensued:
A. Scott opened it up by saying,, I suppose you
know why you're here. I said, no. He said, oh, come
THURNER HEAT TREATING CORP. 733
on. That's when he pulled out a folder and he said, you
flunked your test. And, I said, no, I didn't. And I told
him exactly what the tester had said to me about the
question on the second test. I told him the tester said
that I was a little shaky on the question only. And,
that I actually had done fairly good. Scott, I believe,
then said, do you think you have a future with this
Company. I said, yes, that I was hoping to have a
future with it. Because I was learning more and more
about heat treating. And, at that point, Scott and Mr.
Robert Thurner -both shook their heads and said, no
way. Scott then said we can't convict you on this, but
when we find the person or persons that did this sabo-
tage, we will hang you with them. After that, he says,
we will hang you up by your ears. [Emphasis sup-
plied.]
Q. Was there anything else said?
A. Yes. Then, I said to Scott, you can't fabricate
things. He said, we have spent a lot of money so far,
and we're gonna spend a lot more. And, at that point,
he said, we're gonna have to let you go. And, he took
me to the door leading to the shop and got me an
escort.
Q. Did he say anything to you as he took you to the
door?
A. Yes, he did. He says, get out and don't ever
come back.
Andersen further testified that, when he was transferred
to the inspection department as a trainee, every few weeks
Ted Davis would tell him he was doing a good job, just
keep it up. He had also received criticism from Davis but
never disciplinary action and had been complimented by
Foreman Hausen for his work when he was on the third
shift. On March 26, 1975, he told Ted Davis he would not
be staying late and Davis asked why, and he told him he
was going to a union meeting. About 2 weeks before he
was discharged, Davis said, "you know there is a lot of talk
around about unions," but he hadn't heard anything and
no one told him about meetings. Andersen said he then
told Davis, "Well, next time, just ask me." On or about
March 27 or 28, he asked Stephen (Shawn) if he had filled
out a union authorization card and he said, "No, he had
been asked but did not want to get involved." He gave a
card to ken Colle at 8 or 8:30 on March 24 and one to Bob
Rau at his house.
In April 1975, Andersen said he talked with Keith Ja-
cobs and Bob Rau at Jacobs' home and had him sign and
return a union card to him. Bob Hardtke signed and re-
turned a card to him at work just after he was fired on
March 24, 1975.
With respect to the discharge of Ralph Andersen, Fore-
man Hansen testified as follows:
A. He took a polygraph test concerning the alleged
sabotage in our shop. And, it was found that he knew
who did it. And would not say anything.
Q. Was Mr. Andersen a good employee?
A. He wasn't either end of the spectrum. He was in
the middle.
Q. Did you ever observe Mr. Wilson in any Union
activities?
A. No, I did not.
Q. Did you ever hear Mr. Wilson in any Union ac-
tivities?
A. No.
Foreman Hausen stated that he was not involved in the
discharge of Ralph Andersen.
Scott Thurner testified that polygraph tests were given
March 26, 1975, by a Mr. Wallace of Hargrow Secret Ser-
vice and right after Wallace tested Ralph Andersen, Wal-
lace called Thurman and advised him that Ralph Andersen
had failed the test because there was a showing that he was
not telling the truth when he denied knowing who was in-
volved in the sabotage. He further stated that Wallace was
not requested to test the employees on union activity. He
thereupon informed Andersen, in the presence of Tom
Thurner, that he had least expected him but Andersen had
failed the test and he was therefore discharged. Wallace's
polygraph report (G.C. Exh. 9) was received by Thurner
about 2 days later March 28. However, Respondent's Ex-
hibits 24 and 25 (the polygraph report) show that the enve-
lope in which it was mailed to Respondent is postdated
March 31, 1975.
The date of the first complaint to the police about sabo-
tage in the plant, a break in, was March 22, 1975; the
second one involving shot in the forklifts and truck was
March 25, and the third report of shot in the road truck
was made on April 6 (Resp. Exh. 23). The polygraph re-
port from Wallace was addressed to Scott Thurner, instead
of his father, as he previously testified. He believes he had
read the polygraph report before he discharged Ralph An-
dersen but he denied he considered the union matter men-
tioned in the polygraph report.
Scott Thurner further testified that he has never fired an
employee for union activity nor authorized any of Respon-
dent's supervisory personnel to fire an employee for such
activity. He maintained that he had no knowledge of his
employees' union activity during the period January 1975
through March 1975 and that he did not see or hear of such
activity.
Dischargee John Banner was employed by Respondent
on August 14, 1974, and worked under the supervision of
Foreman Randy Kocherer as general laborer until dis-
charged March 20, 1975. On or about March 18, 1975, he
said he approached Allan Mann in the plant and told him
he had heard about the organizing efforts of Mann and
others and Mann asked him if he would be interested. He
said, "Yes." Mann then said employees were -going to meet
at the Tosa Inn after work and he (Banner) said he would
be there. He met at the Tosa Inn with Amos Raffeet, Allan
Mann, Laura Giefen, Chuck Lentz, Dick Thraves, Tim
Zimmer, and Charlie Brah. On March 19, Allan Mann ap-
proached him in the plant and advised him of an organiz-
ing meeting on March 22, 1975. On March 20, about 4
o'clock, Mike Dunn came up to him and, in the presence of
a fellow employee by the name of Bill, told him that Amos
Raffeet had just been fired and he said he would not be
surprised if it wasn't for trying to organize the Union. Bill
said Allan Mann had discussed the feasibility of organizing
the Union with him. He did not see anybody from manage-
ment during the course of their conversation but later in
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that shift, about 6:30 p.m., Foreman Randy Kocherer ad-
vised him that he (Banner) had lust been discharged. He
asked Kocherer why and Kocherer said because about 2
weeks earlier he (Banner) had thrown a plastic coffee lid
while in the plant. He then told Kocherer to think of a
better excuse than that and Kocherer said, "The Thurners
had looked at his work record and did not like what they
saw."
With respect to the incident of throwing the coffee can
lid, he testified as follows:
A. I was on my lunch break, at the time, and I
noticed several of these plastic lids were on the floor. I
picked it up and threw it like a frisbee for about thirty
or forty feet. I didn't aim it at anybody or hit any-
thing. Just hit the floor. And, Randy was in the dis-
tance, and he came over and told me to pick it up.
And, I picked it up. And, while I was throwing it
away, I said something to the effect of this, as if I
really needed this job. And, he overheard me, and
said, well, if you don't, you know where your timecard
is. And, I said, I don't bother you, you don't bother
me. And, -I walked away.
Banner said he did not receive any warning or repri-
mand with respect to the coffee can lid incident. He re-
ceived a union card at the union meeting on March 22 and
signed it on March 24 and gave it to Raffeet or Giefen. He
further stated that, about 2 months prior to his discharge,
Foreman Kocherer told him he had been taking off too
many days and that he (Banner) was put back on 90 days'
probation; that if he came in on Saturday and worked
some overtime maybe he could be put back on the good side
of things, and he said okay. Kocherer thereafter asked him to
work overtime several times but he said he was too busy.
Tom Thurner testified that he did not speak to John
Banner about flipping the frisbee a week or 10 days before
he was discharged. Banner's timecards show he was absent,
late, or left early fairly frequently but the record does not
show that he was reprimanded or given any warning about
it.
Dischargee Amos Raffeet was employed by Respondent
September 19, 1971, and worked in several capacities, the
last of which was setup man- in the induction department
until-March 20, 1975, when he was discharged. He said he
was asked by Tom Thurner during his employment inter-
view if he had ever worked in a union shop and he said,
"No." He has worked in most jobs in Respondent's plant.
He further stated that he met with John Banner, Allan
Mann, Del Wilson, and Laura Giefen at the Tosa Inn and
talked about organizing a union. They had other such dis-
cussions between March 11 and 14, 1975, away from the
plant. Specifically, they had meetings at the Tosa Inn on
March 14 and 15 at 12:30 a.m. along with Chuck Lentz,
Charlie Brah, Tim Zimmer, and Dick Thraves. Raffeet said
he went to work on March 17, 1975, and was told by Laura
Giefen that Foreman Don Hausen asked her what kind of
car she had and she told him none of his business; that she
then asked why and that Hansen got her timecard from the
rack and advised her that she was fired. She asked him why
and he said she was driving between 60 and 90 miles
through the parking lot on Friday, March 14, 1975.
The organizing employees had another meeting at the
Tosa Inn on March 18, 1975, with Dewey Webber and
Don Hausen joining them. On March 19, Raffeet said he
asked employee Bruce Morgan what he thought about
unions and the latter said unions have their good and bad
points but he did not intend to remain at Thurners the rest
of his life. At that time Foreman Randy Kocherer came by
but he did not hear their conversation. He then walked
over to employee Vilnis and told him, confidentially, some
of them were trying to organize a union and asked him
would he be interested and would he support it. He said,
"Yes." Around 9 o'clock that day he approached Donna
Riley and initiated the following conversation:
A. I told her that I would like to talk to her about
something that was personal. And, she asked me what
did I mean about personal, you know. Then, I said,
well, it's for your own benefit. I said, I understand that
you're making $3.10 after thirteen months. And, you
have other people that have worked less time who's
making more money. And, I said, we're trying to get a
Union in. And, she- said-she-asked me -who was the
people that was trying to get a Union organized. So, I
gave her all the names of these people that was at the
meeting. I told her that we had a meeting the night
before. And she said that she would have to check
with her old man. She would let me know the next
day.
Q. What names did you give her?
A. I gave her my name, Laura Giefen and Al
Mann, John Banner, Del Webber, Tim Zimmer, Char-
lie Brah, Chuck Lentz, and Dewey Webber.
Raffeet further testified that Foreman Randy Kocherer
passed by him and the other employees before the lunch
break and he walked up to him and the following conversa-
tion ensued:
A. He came up to me,-he told me he had a special
job that he wanted to set up , which was the old 50.
After lunch , you know . So, I then set the machine up
during the time I was on lunch . The coil was already
there . So, the small job-I said I put the piece in, I
balanced the machine off. So, after I returned back
from lunch , I walked to the machine to see who did he
want to operate the machine . And, he told me that the
job was finished . Someone else had ran it. It was only
seven pieces. And, he also , he said , there isn't very
much work around here . I recall that's what he said.
Isn't very much work. I said, well, I think it's sufficient
amount of work. And, then , he said if most-shops that
the Union was in, they would have laid off already, you
know . And, he said that the Company has been think-
ing about laying some people off. And I said, well,
they never laid off before. You know. Then, he made
the statement about the employees working at Thur-
ner, was making more money than at other heat treat-
ing places . And I-said, you're wrong. Because I know
a place that they pay the sandblasters $4.85 for sand-
blasting. And, he told me, he says, then , maybe you
should go to that place. [Emphasis supplied.]
THURNER HEAT TREATING CORP. 735
Raffeet said he asked Kocherer why did he mention
union, was there a union in progress and Kocherer said,
"No." Foreman Kocherer then told him that he (Raffeet)
was the third highest paid man in the induction depart-
ment . Based on this conversation Raffeet said he later told
Chuck Lentz and Allan Mann that Respondent knew
about the union activity. About 4:10 p.m. on March 20,
1975, Foreman Kocherer advised him that Tom Thurner
wanted to see him in his office. He said he thought so and
he reported to Thurner's office, where Thurner had several
timecards in his hand and asked him why he was 15 min-
utes late on March 17 or 18, and he told him he had a
dental appointment. Mr. Thurner asked about his being
tardy and absent on other occasions in December 1974,
which he explained was due to his having the flu and that
his foreman knew about. Thurner then told him the Re-
spondent has received telephone calls from the child sup-
port division of the welfare department which was looking
for him and he replied that that was impossible because he
did not have a child on welfare. He asked Thurner what
branch of the welfare department had called Respondent
and Thurner said he did not know. Raffeet said his conver-
sation with Thurner continued as follows:
A. So then, I think, that he asked me, why did Lau-
ra Giefen never smile. And, he says, well, that's not
important any more. She quit on Friday. And, I said,
she did not quit on Friday. She was fired on Monday
by Don Hausen. The general foreman. First shift fore-
man.
Q. Did Mr. Thurner say anything after that?
A. He said that she brought me to work on the day
that I was fifteen minutes late.
ceived any warning or reprimand about his work or time
and attendance but, on the day he was discharged, he was
accused of punching in Laura Giefen.
With respect to locations in the plant, Raffeet testified
that the sienna section is located in the north center of the
plant where the work is dangerous, the temperature is
warm, and the air contains chemical fumes.
Foreman Don Hausen further testified that he remem-
bered seeing Allan Mann and Amos Raffeet talking on
March 20, 1975, but could not hear their conversation and
he had not heard any employee discussing the Union. Tom
Thurner testified that, when he discharged Amos Raffeet
on March 20, 1975, Raffeet did not ask him for reinstate-
ment to his job. Also on March 20, 1975, he advised Raf-
feet that he had learned that he (Raffeet) was clocking in
Laura Giefen and Raffeet made no response. He then
asked Raffeet if it was true or'not and he said yes it was
true. Raffeet denied that he admitted punching in Laura
Giefen. He said Thurner then asked him if he thought this
was, in essence , cheating or defrauding the Company of
time. "I asked him if she went directly to work, he said, she
did not, thereby costing the Company time in which she
would be changing, which is against Company rules and
policy." Thurner said he did not recall Raffeet asking him
for permission to work out the shift or his offering Raffeet
to pay his transportation home.15
The record shows (G.C. Exhs. 8(a) and (b)) that the
Union, by letter dated April 10, 1975, and received by Re-
spondent on April 11, apprised Respondent of the fact that
it had been designated by a majority of its employees as
the exclusive collective-bargaining representative of the
employees in an appropriate bargaining unit, and demand-
ed immediate recognition for that purpose.
Thurner told Raffeet that he was punching in Laura
Giefen. He also told him that Giefen had filed several
complaints against the Respondent and then he advised
him (Raffeet) that he no longer worked there. Raffeet said
he asked Thurner if he could work the remainder of the
night because he did not have transportation home but
Thurner told him to take the bus or a cab, and offered to
pay his carfare, but he did not accept his offer. Thurner
then told him he should not apply for unemployment compen-
sation because the Company would fight it all the way. Raf-
feet said he signed and submitted a union authorization
card (dated March 22, 1975) to the Union.
Raffeet said that on March 24, 1974, he distributed
union cards outside the plant and about 12:30 a.m. on
March 25 he received a telephone call at home from Don-
na Riley, who told him Respondent possibly found out
about the Union through her conversation with Foreman
Kocherer, during which she told him Raffeet and other
employees were tying to organize a union. Raffeet further
testified that, during his tenure with Respondent, he had
been terminated on November 12, 1972, for damaging
shafts and machinery ; that 2 years later he was discharged
for sight pins being spilled on the floor but that in each
instance he was rehired shortly thereafter. He was dis-
charged again in August 1974 because he was serving time
in jail at night and was rehired after completing'his jail
sentence. Prior to his current discharge, he had not re-
Analysis and Conclusions
A determination of the validity of the allegation with
which the Respondent is charged, and the corresponding
defenses asserted by it in response thereto, depends largely
on a determination of the veracity of the several witnesses
whose testimony is highly conflicting. While it is difficult in
some instances to resolve such' vexing questions of fact to
which the parties alone bear witness, I am nevertheless
compelled to consider the relationship of each witness to
the party on whose behalf he testified, the readily respon-
sive, nonselective, nonexaggerating, consistent, and
straightforward manner in which he testified, the reason-
ableness of efforts made by the parties to bring essential
witnesses and appropriate documentary evidence before
the court, as well as how such testimony or other evidence
15I credit Raffeet's testimonial version of the conversations during his
discharge conference over Tom Thurner's version because, not only did
Raffeet deny admitting that he punched in Giefen, but Thurner could not
recall Raffeet asking for permission to work out the shift, and the credibility
of Respondent's (supervisory) personnel throughout the record does not
coincide with the circumstantial and overall uncontroverted evidence of
record. Moreover, I received the impression from his demeanor on the stand
that Tom Thurner was testifying in a careful and selective manner, which
persuaded me that he was not telling the whole truth
736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relates to the logical consistency of all the evidence of rec-
ord and the sequence of -events as they transpired.
C. Respondent's Interrogation of its Applicants for
Employment
The credible testimony of practically all of the employee
witnesses , corroborated in part by Respondent (Scott and
Robert Thurner), establishes ,that during their respective
employment interviews, Respondent asked each of them if
they-were union affiliated and told them Respondent was
nonunion . It was further established by the credible testi-
mony of Allan Mann, Tom R. Whitney, Charles Lentz,
Ralph Andersen, and Amos Raffeet that, during their in-
terview for employment with Respondent, the Respondent
asked them and posed, either one or a combination of the
following questions and, statements: What were their opin-
ions on, or,how they felt about unions; were they for or against
unions; had they ever worked in a union shop; and Respon-
dent stated that it is a family nonunion plant; that it had a
union at one time , and it was a bitter fight getting rid of it.
D. Employer Interrogates Employees-About Their Union
Interests and Desires
Respondent contends that its -employment interview
question about union affiliation was asked of employment
applicants in an effort to avert employing applicants who
would later learn that Respondent is nonunion and there-
upon voluntarily terminate their employment, at consider-
able training and bookkeeping expense to the Respondent.
However, when one considers Respondent's failure to pro-
duce the names or appearance of any such past employees,
Respondent's followup questions and statements about
how the applicants felt about unions, its statements about
how Respondent got rid of the Union, and the overall an-
tiunion climate and conduct in the plant as demonstrated
throughout the record, infra, Respondent's contention can
hardly serve to justify the purpose for which such questions
were asked and such statements made. In fact, the follow--
up questions and antiunion statements by Respondent now
clearly reveal 'the pretextual nature and the self-serving
purpose for which its contention is advanced, in an effort
to justify the coercive, restraining, and illegal effect of its
conduct, in violation of the protected rights of its employ-
ment applicants and employees. This position is well sup-
ported by Court and Board decisions in Phelps Dodge Cor-
poration, 313' U.S. 177 (1941); Sterling Aluminum, a Division
of Federal-Mongul, 163 NLRB 302 (1967); and Stainless
Steel Products, Incorporated, 157 NLRB 232 (1966), proper-
ly cited by counsel for the General Counsel.
Consequently, based on the foregoing credible evidence
and pursuant to the above-cited authority,,I conclude and
find that Respondent's statements about getting rid of the
Union constituted evidence of union animus; that Respon-
dent's questions about union affiliation and opinion consti-
tuted coercive interrogation of its applicants for employ-
ment and employees about-their union interests, desires,
sympathies, and affiliations, in violation of Section 8(a)(1)
of the Act.
E. Employees' Union Activity and Respondent's Discharge
of Employees
The-evidence undisputably establishes that the Respon-
dent is a family-corporation doing business in a small plant
(G.C. Exh.'6) with a total work force of approximately 52
employees who are distributed over three daily work shifts.
Thirty-three of the total work force of employees signed
union authorization cards during the period March 22 and
April 9, 1975. Thirty-one -of such employees signed their
union authorization cards between March 22 and 28, while
1 signed a card on April 4 and 1 on April 9. Although most
of the employees' union activity (meetings and open solici-
tation), prior-to March 25, took place outside the plant, a
considerable number of union-related oral inquiries, dis-
cussions , and notices about meetings , nevertheless, did in
fact occur inside the plant prior to that date.
The evidence of record more than amply establishes that
on or about March 13, 1975, and the weeks immediately
subsequent thereto, Respondent employees, pursuant to
the suggestion of dischargee Laura Giefen, proceeded to
discuss and in fact organize a union. The employees in-
volved in the original organizational discussions on Friday,
March 14, and Saturday, March 15, at the Tosa Inn (a
tavern located a short distance down'the road from the
plant) were : Garth Fletcher, Allan Mann, Amos Raffeet,
Charles (Chuck) Lentz, Del Wilson, and Pamela Miller. On
the following Monday, March 17, Laura Giefen reported
to work and after punching the timeclock was precipitously
discharged by General Foreman Don Hansen without any
warning or reprimand 'for reportedly driving on the plant's
parking lot at a high rate of speed. -
On March 19, 1975, Laura Giefen and fellow employees
Allan Mann, John Banner, Amos Raffeet, Chuck Lentz,
Charlie Brah, William (Dewey) Webber, and Mary and
Dick Thraves met at the Tosa Inn for further discussions
on organizing the Union. Except for Laura Giefen suggest-
ing unionization to fellow employee Garth Fletcher on or
about March 11 or 13, all of her organizing discussions
took place outside the plant.
On March 19, 1975, dischargee Amos Raffeet 'ap-
proached fellow employees Bruce Morgan and Mike Vilnis
in the plant and advised them of the employees' organizing
effort and tried to solicit their support. During his discus-
sion`with Vilnis, Raffeet told him the names of all of the
employees participating in the organizing discussions. Dur-
ing Raffee't's discussions with Morgan and Vilnis, Foreman
Randy Kocherer passed by. Later, Kocherer ,told Raffeet
most shops-with unions having the amount of work Re-
spondent had on hand would have laid off its employees
already. Kocherer- also said Respondent's employees were
making more money than other heat treating places. Raf-
feet told Kocherer that he knew of a 'place where the sala-
ries were higher and Kocherer told him maybe he should
go to-that place. Raffeet then asked Kocherer why he men-
tioned the union, was there a union in progress. Kocherer
replied, "No." On the very next day, March 20, 1975, Raf-
feet reported to work several minutes late, as he frequently
did, and he was advised to report to the office of Tom
Thurner who advised him he was discharged for excessive
tardiness.
THURNER HEAT TREATING CORP.
On March 19 , 1975, dischargee Allan Mann held conver-
sations about the Union prior to the shifts and - during
lunch periods with fellow employees Mike Vilnis, Donna
Riley, and Ralph Andersen . On March 20 , Mann'and Raf-
feet had been conversing prior to Raffeet's discharge and
Raffeet immediately reported the fact to Mann that he was
discharged . Subsequently , Mann, while away from his ma-
chine to get some asbestos rope to be used on the job he
was working, was approached by General Foreman Han-
sen, who without any warning or reprimand precipitously
discharged him for allegedly leaving his machine unattend-
ed. Mann's machine was not running at the time . Although
he had in fact left his machine running on a previous occa-
sion, even then he was not warned that he would be fired
for such action.
On March 19 , 1975, dischargee Del Wilson had discus-
sions about the Union in the plant with Charlie Brah, and
on another occasion , with Amos Raffeet and Allan Mann.
During the discussions with Raffeet and Mann , Wilson
saw Foreman Kocherer standing within probable hearing
range of their conversation. On the next day, March 20,
Foreman Hausen asked him - about some finished parts
which had sandblast shot over them . Wilson, who was re-
hired on a 90-day probationary period for failing to pick
up some spilled hooks was precipitously discharged by
Foreman Hansen and advised to get out of the plant imme-
diately. The evidence did not establish as a matter of fact
that Wilson was responsible for the sandblast shot being
over the parts.
Dischargee John Banner had a conversation with Allan
Mann about the Union in the plant on or about March 18,
1975, and he met with employees Amos Raffeet, Allan
Mann, Laura Giefen, Chuck Lentz, Dick Thraves, Tim
Zimmer, and Charlie Brah at the Tosa Inn after work.
Also, on March 19, Banner was approached by Mann in
the plant and advised of an organizing meeting scheduled
for March 22. There is no evidence that any representative
from management had heard Banner's conversations re-
garding the Union or that management had any knowledge
about his participation , in the discussions at the Tosa Inn.
However, later during that shift (about 6:30 p.m. on March
20), he was advised by Foreman Kocherer that he had
been discharged for throwing a plastic coffee lid like a fris-
bee 3 weeks prior thereto.
Former employee Pamela Miller was a clerical employee
in the Respondent's office who associated with the shop
employees and had attended the organizing meetings at the
Toga Inn , between March 14 and 18, 1975. In the late af-
ternoon of March 19, employee Webber came to the office
and informed Pamela , Miller that Amos Raffeet, Allan
Mann , John Banner, and Del Wilson had just been dis-
charged by Respondent . On the next day, March 21, 1975,
on orders from Scott Thurner,,Miller was assigned to the
shipping ; and receiving department although she had book-
keeping work to, perform in the shop 's clerical office. As a
result of this assignment and the nonclerical duties which
she was ordered to perform (including washing windows),
she voluntarily terminated her employment with the Re-
spondent , on that afternoon. Just prior to terminating her
employment, she was told by Tom Thurner that she was
reassigned because she shad friends in the plant, that Scott
737
Thurner did not want her at the plant, and that she had
some savory friends (union organizers). As Miller left the
plant, she_ was told by Tom Thurner that some of her
friends (organizing employees) were holding a meeting
down on the parking lot. While Miller's conversations with
Tom Thumer may not be the most explicit, they neverthe-
less established, beyond a mere inference, that the Respon-
dent was aware of its employees' union activity, upon
which it looked with disfavor or animus.
On March 21, 1975, dischargee Garth Fletcher was-leav-
ing, the plant when he was approached by Laura Giefen,
Amos Raffeet, and Allan Mann on the parking lot and
apprised of their union activity and asked for his support.
As they spoke to him, Fletcher noticed Foreman Hansen
walk by and look in their direction with an angry expres-
sion. As he reported to work on March 24, he observed
Amos Raffeet, Laura Giefen, and Allan Mann distributing
union authorization cards in front of the plant. He went up
to them, took a-card, signed it, and returned it to Raffeet.
He entered the, plant and observed that his timecard was
missing from the timecard rack and he was advised by
Foreman Don Hansen that he was fired for his extracurri-
cular activities and being 3 minutes late.
On March 24, 1975, dischargee Brian Holst reported to
work and was approached by Laura -Giefen outside the
plant. She asked him if he would sign a union authorization
card and attend the union meeting. Hoist accepted a card,
signed it, and returned it to her. He went into the plant and
worked from 7:30 until 3:55 when he was advised by Fore-
man Hausen that he did not have to punch out, he (Han-
sen) would write him out at 4 -o'clock, and that he was
discharged for missing too many days during his 90-day
probationary period.
On March 24, 1975, dischargee Robert Harrltke was ap-
proached in the plant by fellow employee Ken Colle who
first asked about his union interest, and then asked him to
sign a union authorization card. He accepted- the card,
walked to his work station, and later, proceeded to fill out
the card when he suddenly turned around and discovered
Foreman Hansen behind him with his timecard. Foreman
Hausen then informed him that, he did not have to punch
out because Respondent no longer needed ,him; and that
his employment was terminated because of a slowdown in
business or lack of work.
Dischargee Robert Rau had a conversation about the
Union in the, plant with fellow employee Ken Colle on
March 24, 1975, during which time Colle gave him an au-
thorization card to complete. Rau went into the men's
room where he read and signed the card, and later returned
it to Colle. Later during the same day he had a conversa-
tion about the Union with Ralph Andersen, who gave him
some authorization cards with which to solicit, On the fol-
lowing day, March 25, be solicited the support of fellow
employees. About 11 a.m. Foreman Michael Adamski,
without any,warning, advised him that his timecard had
been pulled by Tom Thurner and that he was discharged
because he was late. As his record shows, he had been late
on several occasions.
On or a, few days subsequent to March 8, 1975, dischar-
gee Tom Robert Whitney had asked Foreman Hausen about
trouble with the Union and Hansen said, "We fire them
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
right away." On March 25, Whitney was approached by
the union organizers who requested his support. He walked
out of the plant with some of the organizers and got into
organizer Lentz' car where he completed and signed an
authorization card. Near the close of the work shift on the
very next day, March 26, Whitney was advised without any
prior warning or reprimand that he was discharged because
Foreman Kocherer thought he would not work out.
Dischargee Ralph Andersen had a discussion in the plant
on March 21, 1975, with Allan Mann who had been dis-
charged but was seeking his support of the Union. Ander-
sen attended the union meeting on March 22 where he
completed, signed, and submitted to the Union an authon-
zation card, along with the signed cards of five other fellow
employees. Andersen was first employed by Respondent in
August 1974 at a salary of $3 per hour, and 90 days later
was increased to $3.30 per hour, then later to $3.50 per
hour, and thereafter to $3.65 per hour. He had told Ted
Davis on March 26 that he was going to a union meeting
and 2 weeks later Andersen told Davis that if he wanted to
know about the Union he could ask him (Andersen). Be-
tween March 24 and early April 1975, Andersen solicited
union support of fellow employees inside and outside the
plant.
The sabotage in the plant 'occurred between March 21
and 25, 1975, thus coinciding somewhat with the com-
mencement of the employees' union activity in and outside
the plant. Andersen was one of several employees who
took the polygraph test on March 26, in an effort on the
part of Respondent to ascertain who was responsible for
the sabotage in the plant. During the test, Andersen told
the tester he was involved in organizing a union in the
plant although the tester did not ask that question. After
the test, the tester advised Scott Thurner by telephone that
Andersen had failed the test because the test results indi-
cated he was not telling the truth when he denied knowing
who was involved in the sabotage. The tester's written re-
port is dated March 28, 1975, and the envelope in which it
was mailed is addressed to Scott Thurner and dated March
31, 1975. However, after the tester' advised Scott Thurner
by telephone of the results of Andersen's test, Andersen
was called to the office of Scott Thurner and, in the pres-
ence of Robert Thurner, was advised he was discharged on
the basis of the report from the tester. Scott Thurner said
he believed he had seen the written report containing infor-
mation about Andersen's involvement in the Union prior
to his discharge of Andersen.
Although employee William (Dewey) Webber was not dis-
charged by Respondent, the evidence shows that on March
26 he was called to the office of Scott Thurner wherein he
observed Scott Thurner requesting the timecards of Robert
Rau, in preparation for discharging him for untimely atten-
dance. At that time, Scott Thurner said he was not after
those people and he asked why should he want to fight
them, the employees made enough money with profit shar-
ing; that Respondent had very good lawyers and that they
were going to fight this thing and would be willing to spend
thousands of dollars to solve the problem; that Respondent
might have to take a couple of people back, but, how long
did he think they would last, Respondent would give them
the dirtiest sloppiest jobs he could find. He then told Web-
ber not to fight him, and asked him why didn't he (Web-
ber) play ball on Respondent's side; that he did not need a
union there because Respondent's doors are open all the
time to get his problems solved. Scott Thurner then told
him there was going to be a meeting (presumably a union
meeting) that afternoon and asked Webber to call him be-
fore the meeting and let him know how he (Webber) stood
on this other trouble (union).
During their conversation Scott Thurner asked Webber
what shift did he like to work and further said, "You don't
like working third shift," and Webber agreed. After talking
over the matter of union affiliation with his wife, Webber
called Scott Thurner and advised him that he had decided it
would be best to play ball with Respondent and he (Respon-
dent) said okay. Webber also requested to speak with him
that afternoon and Thurner said "okay,- come in early."
Webber reported to the office of Scott Thurner that af-
ternoon and advised him that he needed a raise and Thur-
ner said "okay, you'll get it." Webber did in fact receive the
raise in salary.
The complaint alleges that employees Timothy Zimmer
and Richard Thraves were also discharged by Respondent
on March 24, 1975. However, neither Zimmer nor Thraves
appeared in this proceeding and no evidence was intro-
duced with respect to their discharges and no finding is
made as to whether they were lawfully discharged.
Based on the foregoing credible evidence, I conclude
and find that Respondent employees were engaged in
union activity, inside and outside the plant, from about
March 13 through April 9, 1975. However, since the above-
described evidence raises crucial issues as to whether Re-
spondent had knowledge of such activity, and, if in fact it
did, did it discharge any of its employees for engaging in
such union activity , a close examination of all of the evi-
dence of record in this regard is warranted.
F. In the Midst of Its Employees' Organizing Campaign,
Respondent Interrogated Its Employees, Solicited Their
Grievances, Promised Them Wage Increases, Threatened To
Withdraw Their Benefits and To Transfer or Terminate
Them
Although Respondent denies knowledge of union activi-
ty of any of its terminated employees, the credible evidence
of record nevertheless shows that on March 19 Foreman
Randy Kocherer stood near union conversations carried
on between Amos Raffeet and other organizing employees;
and on March 19, Tom Thurner told Pamela Miller she
was being assigned to other nonclerical work because she
had friends in the plant, "friends" referred to organizing
employees, and that Scott Thurner did not want -her in the
plant because she had some savory friends (organizing em-
ployees); that on March 8 General Foreman Don Hausen
told employee Robert Whitney that Respondent fires
union organizers right away; that on March 24, Hausen
told Brian Holst, following his signing a union card 'on the
plant's parking lot, that he was discharged for his extracur-
ricular activities and being late; that on March 24 Hausen
walked up behind Robert Hardtke while he was signing a
union card and discharged Hardtke instantly; that on
March 21 Hausen looked at employee Garth Fletcher with
THURNER HEAT TREATING CORP.
an angry expression when Fletcher was talking with union
organizing employees in the plant.
The uncontroverted evidence establishes that, on March
24, Respondent (Don Hansen) sent employees Eugene La-
March and one Tony to its parking lot to verify his hunch
or belief that- the employees congregated there were en-
gaged in union solicitation. Thereafter, Foreman Hansen
called the police who appeared on the lot and questioned
the employees. On April 4, Foremen Hansen and Adamski
drove down to the plant's parking lot to again satisfy
Hausen's curiosity that the employees congregated there
were engaged in union solicitation. I hereupon conclude
and find that such conduct by Respondent (Hausen) evi-
denced it had prior knowledge on its first hunch, and for
certain on its second effort, to verify the legal union activi-
ty of its employees; and that such conduct constituted sur-
veillance of its employees in the exercise of protected
rights, in violation of Section 8(a)(1) of the Act.
On March 26, Respondent (Scott Thurner) held a con-
versation with William (Dewey) Webber during which it
promised Webber a raise in pay if Webber would let Re-
spondent know where it stood on the Union and play ball
on the Respondent's team. Respondent then stated that it
would terminate or demote employees who supported the
Union or that it would assign them to the dirtiest sloppiest
jobs; that Webber and other employees did not need the
Union but could bring their grievances to it; and that it
would withdraw benefits to its employees by selling its
plant to the Union and open a new plant nearby to com-
pete with and drive the Union's plant out of business, be-
fore it would allow the Union to run its current business. I
hereupon conclude and find such promises and threatening
statements and conduct by such high-ranking managerial
officials (the Thurners and Foremen Kocherer and Hau-
sen) of Respondent constituted an interference with, a re-
straint upon, and coercion against protected rights of its
employees in violation of Section 8(a)(1) of the Act.
Respondent Prepared and Circulated an Antiumon
Petition
On or about March 31 or April 3, 1975, General Fore-
man Don Hansen presented his draft of an antiunion peti-
tion to employee Kenneth Colle to type in final and circu-
late among Respondent's employees.
The petition read as follows:
We, the undersigned employees, of Thurner Heat
Treating are aware of action being taken by former
employees to force us to accept representation by the
United Auto Workers: U.A.W. The small minority of
people involved in the action is in no way representing
the wishes of those workers that put in a good days
work.
Furthermore, the harrasment and pressure being ap-
plied by the U.A.W. is not going to force us to accept
their union, or any other union, we don't want.
We don't want union representation, any help that
you can give us on this -matter will be greatly appreci-
ated., -
Donald Hausen told Colle that he thought it was unfair
739
that the Union could force its way into the plant without
all of the employees being in favor of it. Colle thereafter
typed and circulated the petition on which he was able to
secure the signatures of several of his fellow employees.
Colle said he told the employees that he did not feel that
their not signing the petition would help them to keep their
jobs and he urged them to sign it if they wanted their jobs.
Upon Foreman Hausen's instructions, Colle thereafter
showed the petition to Tom Thurner, who copied the
names signed thereon. Colle returned the petition to Hau-
sen as instructed and Ted Davis continued the circulation
of the petition. During the course of the investigation of
this case by the Board, Colle gave the Board an affidavit
which Foreman Hausen asked Colle to see. Hausen had also
asked Colle was he for or against the Union.
I further conclude and, find that employee Colle and Da-
vis were agents for Hansen (Respondent) in circulating the
petition and that such conduct, including Hausen's ques-
tions of Colle, constituted coercive interrogation, as well as
other interfering, restraining, and coercive action against
employees' protected rights in violation of Section 8(a)(1)
of the Act.
G. Respondent's Discriminatory Discharge of Employees
In examining all of the evidence, it is readily observed
that, while Respondent disclaimed knowledge of union ac-
tivity of any of its employees, it nevertheless proceeded to
discharge 13 of its employees within a period of 21 days
following the first 4 days of employee organizing activity,
and one employee (Buenning) 5 weeks later (May 20,
1975).
Specifically, dischargee Laura Giefen, the originator of
the organizing movement , was the first employee dis-
charged by Respondent on March 17, 1975, only 3 days
after the first employee organizing meeting on March 14.
Respondent contends that it discharged Giefen for speed-
ing on the plant's parking lot and , since the record does not
contain direct evidence that Respondent had prior knowl-
edge of her organizing activity , her discharge has the ap-
pearance of having been based upon cause , regardless how
trivial . However, the evidence of record cannot be justly
evaluated in isolated and piecemeal dimensions, which ig-
nore the overall organizing climate in the plant and the
succession of employees discharged within a period of 21
days immediately subsequent to the outset of union activi-
ty.
In this regard , it is particularly noted that , subsequent to
inplant and out-of-plant discussions of organizing the
Union by each of four employees on March 18 or 19, Re-
spondent, without warning or reprimand, precipitously dis-
charged each of the four employees for the contended rea-
sons set opposite their respective names as follows:
Allan Mann, for leaving his machine operating
while unattended.
Del Wilson, for spilling sandblast shot over some
treated metal parts.
John Banner, for throwing a plastic coffee can lid
like a frisbee. -
Amos Raffeet, for excessive tardiness and indefinite
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and' unsubstantiated telephone calls from the welfare
department regarding child support.
Clerical employee Pamela Miller, who did not sign a
card but had been associating with the discharged union
organizers and attending their meetings at the Tosa Inn
between March 14 and 20, was suddenly assigned several
nonclerical and onerous work assignments by Respondent
on March 21, thereby provoking her to voluntarily termi-
nate her employment with Respondent on that afternoon.
Dischargees Garth Fletcher, Brian Holst, and Robert
Hardtke were each approached by fellow employee organ-
izers on the plant's parking lot on the morning of March
24, 1975, when they were given union authorization cards,
which each of them signed and returned to the organizers.
When they entered the plant to work, without any warning
Respondent immediately advised Fletcher that he was dis-
charged because Foreman Kocherer thought he would not
work out. Later that day, without any warning, Respon-
dent discharged Brian Holst allegedly for absenteeism dur-
ing his probationary period and advised Robert Hardtke
that he was discharged because it did not need him since
work was slow. Respondent also discharged Timothy Zim-
mer and Richard Thraves, both of whom were active union
organizers but neither of whom appeared and testified in
this proceeding, and no evidence was adduced with respect
to the nature of their discharges.
Dischargee Robert Rau signed a union authorization
card and solicited union support from all fellow employees
in the plant on March 24 and 25. On March 25, Respon-
dent, without any warning or reprimand, precipitously dis-
charged him for being late, as he had been on previous
occasions.
Dischargee Tom R. Whitney left the plant with fellow
employee organizers on March 25 and signed an authoriza-
tion card on the plant's parking lot. On the next day,
March 26, without any warning or reprimand, he was pre-
cipitously discharged by Respondent because Respondent
contends it decided he would not work out in the job.
Between March 24 and, early April 1975, dischargee
Ralph Andersen was actively soliciting support for the
Union inside and outside the plant and he signed an au-
thorization-card at the union meeting on March 22. After
taking the polygraph test which was administered to ascer-
tain which employees were responsible for sabotage in the
plant, Respondent advised Andersen he had failed the test
and was therefore discharged. Respondent admits it knew
Andersen was involved in union activity before it dis-
charged him, but it maintained that it discharged him only
because the test results indicated he knew who was involved
in the sabotage in the plant.
H. Respondent's Knowledge of Employees' Union Activity
Motivated Its Discriminatory Reprisal
While initially there might have -been a question as to
whether Respondent had knowledge of the union activity
of Laura Giefen before she was discharged on March 17,
as well as prior knowledge of the union'activity of the other
12 dischaxgees, the overwhelming chain of circumstantial and
direct evidence now makes it clear that Respondent did in
fact have such knowledge prior to the voluntary termina-
tion of Pamela Miller, and prior to its discharge of Laura
Giefen and 11 other employees discharged by, it"in late
March and early April 1975.
More specifically, when the well-established union activ-
ity of Respondent's employees is considered along with the
fact that Respondent is a small plant, operated under a
rather closely observed family-type management wherein
employees' gossip and hearsay are in all probability ob-
served, and/or communicated to management, knowledge
of -the union activity of Laura Giefen and other employees
is reasonably inferred to the Respondent. LC.-Sutton Han-
del Factory, 119 NLRB 951 (1957), enfd. 255 , F.2d 697
(C.A. 8, 1958), cert, denied 385 U.S. 865 (1958).'When Re-
spondent's precipitous assignment of Pamela Miller to
more onerous'work on March 21 is considered in conjunc-
tion with its commencement of''the sudden and wholesale
discharge of 12 employee union organizers on March 17,
only 4 days after the employees initiated "their organizing
activity, it becomes obvious that Respondent had knowl-
edge of such activity.
The above conclusions are further supported when it is
observed that all of the discharged employees were actively
engaged in union activity at the time of their discharge.
The only two avowed employee union organizers Respon-
dent did not discharge were Kenneth Colle and William
(Dewey) Webber. But this is understandable since Colle, at
the request of Respondent, typed, circulated, and submit-
ted the signed antiunion petition to Respondent as its
agent, and Webber agreed to play ball with Respondent by
refraining from further supporting the Union.
Moreover, pursuant to the request of counsel for the
General Counsel, I also hereby take administrative notice of
Respondent's long history of union animus as found by the
Board in Thurner Heat Treating Corp., 199 NLRB 883
(1972).
Respondent advanced a host of reasons for the discharge
of its employees, such as speeding on, the parking lot, spill-
ing sandblast shot on finished parts, throwing a harmless
plastic coffee can lid like a frisbee, the sudden thought that
an employee would not work out in the job, an unestablish-
ed slowdown in work, and poor time and , attendance.
However, when it is noted that the widespread unlawful
antiunion conduct of Respondent and the timing of the
discharges coincided with the recent onset of employees'
union activity, of which Respondent was fully aware; the
fact that all of the dischargees were actively supporting the
Union; the precipitous character of all of the discharges
without prior warning or reprimand; and the sudden sig-
nificance of enforcing time and attendance, it is clearly
evident that the reasons advanced by Respondent were a
pretext contrived by it to mask its true and-unlawful mo-
tive for discharging 12 employees, and causing the con-
structive discharge of one employee.
It might be argued that Ralph Andersen was discharged
for cause because the polygraph test simply indicated, not
established as a fact, that he might have known who was
.involved in the sabotage in the plant. However, it is noted
that Respondent also obtained definite knowledge in the
polygraph report that Andersen was engaged in union ac-
tivity,'and, while having such knowledge, the record does
THURNER HEAT TREATING CORP.
not show that Respondent -ever asked Andersen who was
involved in the sabotage. Rather, it precipitously dis-
charged Andersen as if it were more concerned with dis-
charging him than with learning who was responsible for
the sabotage, if in fact Andersen knew who was involved.
Thus, it is apparent that Respondent's primary motive for
discharging Andersen was his union activity. This conclu-
sion is consonant with the logical consistency of all of the
evidence of record.
Dischargee Bruce Buenning signed a union authoriza-
tion card on March 28, 1975. On and subsequent to April
10, both Ken Colle and-Ted Davis, on behalf of Respon-
dent, repeatedly asked Buenning to sign the petition
against the Union and he refused to do so. Ted Davis, who
represented that he had close ties with the Thurners, even
implied Buenning ° might be terminated if he did not sign
the petition. Thereafter, Colle said he was asking Buenning
just one more time to sign the petition but Buenning still
declined to sign. A week later Davis mentioned the petition
to Buenning who made no response. On May 20, 1975,
Foreman Don Hansen, without any warning or reprimand,
suddenly advised Buenning that Respondent had decided
to let him go because he had not worked out in inspection
nor in induction, and that Buenning could ask anyone, and
Hansen said, "ask Davis."
Although the evidence shows that Davis trained and as-
signed work to Buennmg and also gave him overtime, I
nevertheless find the evidence insufficient to support a
finding that Davis was a supervisor within the meaning of
the Act. However, I do conclude and find the evidence
sufficient to support a finding that Davis, with Colle, on
behalf of Hansen (Respondent), promoted the antiunion
movement by circulating an antiunion petition which they
encouraged and threatened Buenning and other employees
to sign; and that, in doing so, Davis and Colle were anti-
union agents of Respondent, whose conduct is violative of
Section 8(a)(1) of the'Act.
I further conclude and find on'the above credible evi-
dence that Respondent learned about Buenning's union ac-
tivity through the same means it learned about the union
activity of its other employees, and that it was provoked by
Buenning's refusal to sign its antiunion petition and there-
upon discharged him' for not doing so. This conclusion is
further supported by the precipitous nature of the dis-
charge without any prior warning,-the time proximity of his
discharge to the discharge'dates of the other dischargees, as
well as the entire record of Respondent's unlawful conduct.
Hence, Respondent's discharge of Buenning on May 20
was also discriminatory in violation of Section 8(a)(3) and
(1) of the Act. Respondent's sudden and vague contention
that, it discharged I Buenning because he was slow and did
not work out is obviously a pretext to again conceal Re-
spondent's real and unlawful motive, Buenning's union ac-
tivity and his refusal to join Respondent's antiunion move-
ment.
In view of all of the foregoing evidence, I conclude and
find that Respondent's reassignment of Pamela Miller to
onerous work on March 21 was motivated by her union
activity or sympathies for the Union, thereby causing her
constructive discharge on March 21, 1975; and that Re-
spondent's discharge of the following 12 employees on the
741
dates set opposite their respective names, and at all -times
since said dates has failed or refused to reinstate any of
said employees to their former or substantially equivalent
positions, all because of their sympathies for and activities
on behalf of the Union:-
Laura Giefen 3/17
Allan Mann 3/20
Amos Raffeet 3/20
John Banner 3/20
Del Wilson 3/20
Garth Fletcher 3/24
Brian Holst 3/24
Robert Hardtke 3/24
Robert Rau 3/26
Thomas Whitney 3/27
Ralph Andersen 4/7
Bruce Buenning 5/20
I further conclude and find that since a majority (29) of
Respondent's total work force of employees (56 or 57) have
selected (by single-purpose authorization cards- which I
find valid) the Union as their representative for purposes
of collective bargaining, of-which fact Respondent was ap-
prised (by the Union's demand letter dated April 10) on or
about April 10, 1975, the Union became the employees'
official bargaining representative on April 10, 1975; that in
view of Respondent's widespread, substantial, systematic,
and pervasive unfair labor practices which were designed
to dissipate and undermine the Union's majority, Respon-
dent has interfered with its employees' exercise of a free
and untrammeled choice to elect a collective-bargaining
representative, which thereby- rendered the holding of a
free and fair election impossible and warranting the is-
suance of a collective-bargaining order. N.L.R.B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 614 (1969); Steel-Fab, Inc.,
212 NLRB 363 (1974).
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the operations de-
scribed 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 bur-
dening and obstructing commerce and the free flow of
commerce. They are unfair labor practices within the
meaning of Sections 8(a)(3) and (1) and 2(6) and (7) of the
Act.
CONCLUSIONS OF LAW
1. Thurner Heat Treating Corp., the Respondent, is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. -
2. International Union, Automobile, Aerospace and Ag-
ricultural Implement Workers of America (UAW), is, and
has been at all times material herein, a labor organization
within the meaning of Section 2(5) of the Act.
3. A unit consisting of all production and maintenance
employees of Respondent, excluding office clerical em-
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees, professional employees, guards and supervisors as
defined in the Act, is appropriate for purposes of collective
bargaining.
4. On April 10, 1975, a majority of Respondent's em-
ployees in the aforesaid appropriate unit had authorized
the Union as its exclusive bargaining representative and
Respondent was notified of this fact on April 11, 1975.
5. At all times since April 10, 1975, the Union has been
the exclusive collective-bargaining representative of the
employees in the aforesaid appropriate unit within the
meaning of Section 9(e) of the Act.
6. Respondent having been notified of the Union's ma-
jority must recognize, and, upon request, bargain collec-
tively with the Union as the exclusive representative of em-
ployees in the aforedescribed appropriate unit.
7. Respondent threatened, coerced, and restrained em-
ployees in the exercise of their rights under Section 7 of the
Act thereby committing unfair labor practices within the
meaning of Section 8(a)(1)-of the Act by:
(a) Coercively interrogating its employees and appli-
cants for employment about their sympathies for, interests
or desires in, or their affiliation with unions.
(b) Surveilling the union activity of its employees by ap-
proaching groups of employees suspected of talking about
organizing a union.
(c) Threatening employees with the withdrawal of bene-
fits by telling them they would lose their jobs or benefits if
the Union got in the plant.
(d) Threatening to demote, transfer, or terminate its em-
ployees by telling them it will fire them or give them the
dirtiest and sloppiest work in the plant should the employ-
ees elect the Union as their collective-bargaining represen-
tative.
(e) Threatening its employees with the close of its plant
before it would recognize or bargain (accede to any of the
Union's demands with which it would not initially agree)
with the Union.
(f) Soliciting grievances of its employees by telling them
they do not need a union because Respondent's door is
open to employees to solve their problems.
(g) Using one of its employees to assist it in preparing
and, thereafter, two of its employees to independently cir-
culate an antiunion petition and encourage and threaten
other employees to sign it, by implying that their jobs may
not be secure if they did not sign it.
8. Respondent discriminated with respect to employees'
hire and tenure of employment and terms and conditions
of employment, thereby discouraging membership in a la-
bor organization and committing unfair labor practices
within the meaning of Section 8(a)(3) and (1) of the Act by:
(a) Discriminatorily reassigning Pamela Miller to oner-
ous work for her activities or sympathies thereby causing
her constructive discharge.
(b) Discriminatorily discharging Laura Giefen, Allan
Mann , Amos Raffeet, John Banner , Del Wilson, Garth
Fletcher, Brian Holst, Robert Hardtke, Robert Rau,
Thomas Whitney, Ralph Andersen, and Bruce Buemmng
for their activities on behalf of the Union.
9. The unfair labor practices found above affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices warranting a remedial order, I shall recom-
mend that- it cease and desist therefrom and that it take
certain affirmative action to effectuate the policies of the
Act.
It has been found that Respondent interfered with, re-
strained, and coerced a substantial number of its employ-
ees in the exercise of their Section, 7 protected rights in
violation of Section 8(a)(1) of the Act, by coercively inter-
rogating applicants for employment and employees, sur-
veilling employees' union activity, threatening to withdraw
benefits, demote, transfer, or terminate employees and/or
close its plant, soliciting employee grievances, promising a
wage increase- to an employee, soliciting and encouraging
employees to initiate and subscribe to a petition against the
International Union, United Automobile, Aerospace and
Agricultural Implement Workers of America (UAW), and
threatening employees with discharge if they did not sign
the petition against designating the UAW the collective-
bargaining representative of the employees; that Respon-
dent discriminatorily reassigned Pamela Miller to onerous
work thereby causing her constructive discharge; that it
discriminatorily discharged employees Laura Giefen, Allan
Mann, Amos Raffeet, John Banner, Del Wilson, Garth
Fletcher, Brian Holst, Robert Hardtke, Robert Rau,
Thomas Whitney, Bruce Buennmg, and Ralph Andersen in
violation of Section 8(a)(3) of the Act; and that all, of such
unlawful conduct by the Respondent prevents the carrying
out of a free election and has the likelihood of dissipating
the Union's majority status. The recommended Order will
provide that Respondent cease and desist from engaging in
such unlawful conduct; that it bargain with the employees'
designated collective-bargaming representative, the Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America; and that it offer
to Pamela Miller, Laura Giefen, Allan Mann, Amos Raf-
feet, John Banner, Del Wilson, Garth Fletcher, Brian
Holst, Robert Hardtke, Robert Rau, Thomas Whitney,
Ralph Anderson, and Bruce Buenning reinstatement to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, and make them whole for
loss of earnings, if any, within the meaning and in accord
with the Board's decisions in F. W. Woolworth Company,
90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962), except as specifically modified by the
wording of such recommended Order.
Because of the character of the unfair labor practices
herein found, the recommended Order will provide that
Respondent cease and desist from or in any other manner
interfering with, restraining, and coercing employees in the
exercise of their rights guaranteed by Section 7 of the Act.
N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4,
1941).
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding and,
pursuant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby recommend the following:
THURNER HEAT TREATING CORP. 743
ORDER 16
Respondent, Thurner Heat Treating Corp., Wauwatosa,
Wisconsin, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Transferring, discharging, refusing to employ, or
otherwise discriminating against employees in order to dis-
courage membership in or support of International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), or any other labor or-
ganization.
(b) Threatening its employees with discharge or other
reprisals if they become or remain union members or give
assistance or support to "a union.
(c) Threatening employees that the plant will be shut
down or moved away, or that the work done in the plant
will be moved away, if a union comes into the plant.
(d) Threatening or enforcing more onerous conditions
of employment to discourage union membership or activi-
ties.
(e) Threatening employees that the selection of a union
as their bargaining representative will result in loss of bene-
fits or other detriment.
(f) Interrogating employees concerning their union
membership or activities in a manner violative of Section
8(a)(1) of the Act.
(g) Soliciting and encouraging employees to initiate, cir-
culate, and subscribe to a petition discouraging employee
support of the UAW, or any other labor organization, and
threatening employees with discharge if they do not sub-
scribe to such petition.
(h) Promising or granting employee benefits in order to
discourage union activities or membership.
(i) Engaging in or creating the impression of surveil-
lance of the union activities of its employees.-
(j) Inducing, instructing, or encouraging employees to
ascertain or report on the union activities, membership, or
union adherence of other employees.
(k) Threatening its employees that Respondent will not
bargain with a union selected by its employees, or will not
contract with such a union except upon unfavorable terms,
or by any like or similar means indicating that the selection
of a union by the employees as their bargaining representa-
tive will be a futile act.
(1) Soliciting employee grievances and telling employees
they do not need a union in order to discourage union
membership or activities.
16 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board , Series 8, as
amended , the findings , conclusions, and recommended Order herein shall,
as provided in Sec 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.
(m) Requiring prospective employees to answer ques-
tions on the employment applications as to their union
membership.
(n) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which it is
found will effectuate the purposes of the Act:
(a) Offer to the employees whose names appear in the
attached notice immediate and full reinstatement to their
former or substantially equivalent positions, without preju-
dice to their seniority or other rights and privileges, and
make them whole for any loss of earnings they may have
suffered by reason of Respondent's discrimination against
them, as set forth in that section of this Decision entitled
"The Remedy."
(b) Upon request, recognize and bargain with the
above-named Union as the exclusive representative of all
the employees in the bargaining unit described above and,
if an understanding is reached, upon request embody such
understanding in a signed agreement.
(c) Mail a copy of the attached notice marked "Appen-
dix" 11 to each employee found to be on the adjusted eligi-
bility list, and to all current employees, and post copies
thereof at its Wauwatosa, Wisconsin, plant. Copies of said
notice, on forms provided bythe Regional Director for
Region 30, shall be signed by a representative of Respon-
dent, and additional copies shall be posted by Respondent
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 Respondent to insure that said notice is not
altered, defaced, or covered by any other material.
(d) Convene during working time, by departments and
shifts, all its current employees, and a responsible official
of the Respondent, at the departmental supervisor level or
above, shall read to department employees the contents of
the attached notice.
(e) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
(f) All our employees are free to become or remain, or
refrain from becoming or remaining, members of the Inter-
national Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America (UAW), or any
other labor organization.
IT IS FURTHER ORDERED that the consolidated complaint be
dismissed insofar as it alleges violations of the Act not
found herein.
17 In the event that 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 "