W. R. Case & Sons Cutlery Co.

National Labor Relations Board - Board Decisions

Jul 23, 1992

307 N.L.R.B. 1457 (N.L.R.B. 1992)

1457
307 NLRB No. 233
W. R. CASE & SONS CUTLERY CO.
1 On January 29, 1992, Administrative Law Judge Michael O. Mil-
ler issued the attached decision. The General Counsel filed excep-
tions and a supporting brief. The Respondent filed cross-exceptions
and a reply brief to the exceptions of the General Counsel.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
2 The General Counsel has excepted to some of the judge’s credi-
bility findings. The Board’s established policy is not to overrule an
administrative law judge’s credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F.2d 362 (3d Cir. 1951). We have carefully examined the record
and find no basis for reversing the findings.
In accord with the Respondent’s cross-exceptions, we correct cer-
tain factual errors in the judge’s decision: (1) The appropriate unit
of Case Cutlery employees was as described in the 1988 collective-
bargaining agreement with the Union, not rephrased and modified in
the complaint. (See fn. 1 judge’s decision.) (2) The Respondent’s
new labor grade 3 included jobs from the predecessor’s former clas-
sification 8 and the Hafter position from former classification 9. (3)
There were no, rather than few, proven exceptions to the Respond-
ent’s policy of declining to rehire any former employee at more than
one grade level lower than the level of the former employee’s pre-
vious job.
Case Acquisition Corporation d/b/a W. R. Case &
Sons Cutlery Co. and Local Lodge #638, Dis-
trict Lodge #65, International Association of
Machinists and Aerospace Workers, AFL–CIO.
Case 6–CA–23398
July 23, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The central issue in this case1 is whether the judge
correctly found that the Respondent lawfully failed to
hire three union activists and delayed hiring another
union activist from its predecessor’s work force. Based
on this finding, the judge found that there was no un-
lawful taint to a petition rejecting the Union relied on
by the Respondent in withdrawing recognition from
the Union. The judge therefore recommended dismissal
of the complaint’s 8(a)(3), (5), and (1) allegations in
their entirety.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The recommended Order of the administrative law
judge is adopted and the complaint is dismissed.
Leone P. Paradise, Esq., for the General Counsel.
William G. Trumpeter, Esq. (Miller & Martin), of Chat-
tanooga, Tennessee, for the Respondent.
William Rudis, of Concord, Connecticut, and Norman Smith,
Jamestown, New York, for the Charging Party.
DECISION
STATEMENT OF THE CASE
MICHAEL O. MILLER, Administrative Law Judge. This
case was tried in Bradford, Pennsylvania, on September 26
and 27, 1991, based on an unfair labor practice charge filed
on February 21, 1991, as amended on March 29, 1991, by
Local Lodge #638, District Lodge #65, International Associa-
tion of Machinists and Aerospace Workers, AFL–CIO (the
Union or the Charging Party), and a complaint issued by the
Regional Director for Region 6 of the National Labor Rela-
tions Board (the Board) on May 31, 1991, as amended on
August 13, 1991. The complaint alleges that Case Acquisi-
tion Corporation, d/b/a W. R. Case & Sons Cutlery Co. (Re-
spondent or Case Acquisition) refused to hire certain
employee/applicants for hire because of their union affiliation
and activity and withdrew recognition from the Charging
Party, in violation of Section 8(a)(3), (5), and (1) of the Na-
tional Labor Relations Act (the Act). Respondent’s timely
filed answer denies the commission of any unfair labor prac-
tices.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and the Respondent, I make the
following
FINDINGS OF FACT
I. THE EMPLOYER’S BUSINESS AND THE UNION’S LABOR
ORGANIZATION STATUS PRELIMINARY CONCLUSIONS
OF LAW
Respondent, a corporation with an office and manufac-
turing facility located in Bradford, Pennsylvania, is engaged
in the manufacture and nonretail sale of cutlery. Based on a
projection of its business since about November 29, 1990,
Respondent, in the course and conduct of its business oper-
ations, will annually purchase and receive at its Bradford,
Pennsylvania facility products, goods, and materials valued
in excess of $50,000 directly from points outside the Com-
monwealth of Pennsylvania. The Respondent admits and I
find and conclude that it is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of the
Act.
The complaint alleges, Respondent admits, and I find and
conclude that the Charging Party is a labor organization
within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
W. R. Case & Sons Cutlery Co. (Case Cutlery) was an old
and well respected manufacturer of high quality household,
military, and sporting knives. In recent years, it experienced
serious economic problems and changed hands several times.
In the fall of 1990, when it was owned by James Parker, it
was placed in bankruptcy. In the course of the bankruptcy
proceedings, the Respondent, Case Acquisition Corporation,
purchased its assets. While the most valuable asset was the
Case name, Case Acquisition decided to attempt to make a
go of continuing knife production in the Bradford, Pennsyl-
vania plant, hiring anew at least some of the Case Cutlery
management and employees, in lieu of either moving the
1458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The unit, as set out in the last (June 1988 to June 1991) collec-
tive-bargaining agreement included all of the Case Cutlery employ-
ees at its Bradford Township and Foster Township plants, excluding
probationary employees, watchmen and janitors, department super-
visors, shipping department employees, office employees, salesmen,
executives, and truckdrivers. The General Counsel’s complaint re-
phrased this unit, appropriate for the purposes of collective bar-
gaining within the meaning of Sec. 9(b) of the Act, as follows:
All full-time and regular part-time production and maintenance
employees employed by the Employer at its Bradford, Pennsyl-
vania facility; excluding guards, supervisors and professional
employees as defined in the Act.
2 All dates are between November 1990 and June 1991 unless oth-
erwise specified.
3 Jt. Exhs. 8 and 9 indicate that some recently hired Case Cutlery
employees were in job classifications 1 and 2, at $7 and $7.96 per
hour, respectively.
plant or contracting out the manufacturing operations. Case
Acquisition admits that it is the successor to Case Cutlery.
For about 50 years, the Union had represented the employ-
ees of Case Cutlery. At its peak in the early eighties, the
work force was over 900; in November 1990 there were 132
unit employees.1
Respondent was aware of the Union’s presence in the Case
Cutlery facility before it acquired the plant. Walter Makin
and Anthony Danias, president and vice president of the
local lodge, respectively, traveled from Bradford to Chat-
tanooga, Tennessee, to attend October and November 1990
hearings in the bankruptcy court. While there, they were in-
troduced to representatives of the entity which became Case
Acquisition and their presence was noted by the Court. In the
second hearing, the Union was also represented by counsel.
At that time, union counsel unsuccessfully sought a delay in
the sale of the business for the purpose of putting together
a union-sponsored employee buyout.
When Respondent first started up, Case Cutlery’s chief ex-
ecutive officer, Herman McIntosh, and a manager, Ken
Griffey, remained with it; they left in mid-December. Re-
spondent did retain a number of the predecessor’s super-
visors, including Dale Clark, manufacturing superintendent,
Erica Runyan, Thomas Russell, Fred Wickwire, Dave
Souther, and Tamra Cousins.
B. The Hiring
1. Generally
Case Acquisition’s purchase of Case Cutlery was com-
pleted on November 29, 1990.2 On that day, a meeting was
held in the plant where John ‘‘Mel’’ Armstrong, Case Acqui-
sition’s president and chief executive officer, was introduced
to all of the employees. Reading from a prepared speech (R.
Exh. 3), he told them that Case Acquisition had only ac-
quired the assets, and not the liabilities, of Case Cutlery.
With regard to their union contract and future employment,
he said:
We will also not be recognizing the current labor
contract. Since this would be a new company and since
there is uncertainty about future production plans, we
will be giving out applications for employment at the
end of this meeting.
If you wish to apply, and we sure hope you will,
please mail your application or drop it off at the per-
sonnel office by Monday morning at 9:00. We certainly
plan to interview current Case employees before con-
sidering any outside applicants.
You will be contacted to arrange for an interview if
you choose to apply for work, but obviously at this
time we have no idea how many people will be needed.
If you do apply and are offered a job with the new
company, it will be under different terms and condi-
tions than those which exist today.
At this time, we do not know what these are but you
will be advised of these new terms and conditions if
you are offered a job by the new company.
In preparing for the takeover, Respondent was aware that
the wages and benefits at Case Cutlery were higher, by about
$4.50 per hour, than those elsewhere in the industry. A busi-
ness plan was prepared which, inter alia, set out the lower
wage rates which the new management believed were nec-
essary if they were to compete. It also consolidated the exist-
ing eight (classifications 3–10) narrowly drawn job classi-
fications into five broader grades.
Under the collective-bargaining agreement, job classifica-
tion 3 had started at $6.81 per hour and progressed over 27
months to $8.17. At the top of the scale, job classification
10 started at $10.39, reaching $13.83 per hour after 33
months.3 New labor grade 1 included jobs from classifica-
tions 3, 4, and 5, paying $5.50 to $7; new labor grade 2 in-
cluded positions from classifications 4–8 and paid from
$5.90 to $7.96; new labor grade 3 was the former job classi-
fication 8, paying $7.20 to $9.13; new labor grade 4 was the
former classification 9, it paid $8.35 to $9.75; and, the top
grade 5 was the former job classification 10, paying $10.15
to $13.50.
On Saturday, December 1, a group of four supervisors met
to review the existing employees, initially to bring back a
skeleton crew to get the plant up and running. The com-
mittee consisted of Dale Clark, superintendent of manufac-
turing, and three supervisors, Fred Wickwire, Erica Runyan,
and Dave Souther. According to the credibly offered and mu-
tually corroborative testimony of Armstrong, Wickwire, and
Runyan, they were charged with selecting the best, most pro-
ductive employees, those who could work well with others.
Additionally, they were directed not to discriminate against
any employee on the basis of race, sex, age, or union activity
or affiliation. Finally, they were instructed that, in order to
avoid employing individuals who might become disgruntled,
they should not bring back anyone at more than one pay
grade below that at which he or she had previously worked.
This committee reviewed the permanent records main-
tained by the supervisors regarding each employee, particu-
larly the Attendance, Tardy and Miscellaneous Reports
(ATMs). They added their own comments concerning the
employees’ productivity, behavior, and attitudes to some of
the ATMs. The files were separated into those immediately
acceptable employees about whom there were no questions
and those more questionable ones, to be reviewed further.
Some employees were immediately excluded. Hiring was
then done according to the jobs which needed to be filled,
with little or no regard for seniority. Selected employees
were interviewed on Monday and Tuesday, December 3 and
1459W. R. CASE & SONS CUTLERY CO.
4 Counsel for the General Counsel questions the reasonableness
and fairness of management’s decision to avoid hiring back employ-
ees at substantially lower rates or with substantially diminished ben-
efits. She also argues that there is insufficient evidence to show that
such a policy actually existed, noting that no such policy was docu-
mented or explained to the employees. I find that Respondent of-
fered credible testimony regarding the existence of such a policy and
note that it was applied in a uniform manner.
4, and approximately 80 were hired and began work between
December 5 and 13. All but four of these fell into the three
lowest grades; one person was hired at grade 4 and three
were hired at grade 5. (As discussed infra, those three were
from the maintenance department and had been selected by
a different group of supervisors.) Each was paid at the top
level for his or her grade.
The plant shut down over Christmas. There was no more
hiring until January 14 when three grinders at labor grade 2
were put on.
While Case Cutlery had kept weekly efficiency reports on
the direct labor employees, comparing their production
against a standard, those efficiency reports had not been
compiled or used by the new management in its hiring deci-
sions prior to January 14. On about that date, however, such
a compilation, showing the employees’ efficiencies on a
year-to-date basis, was readied. Armstrong instructed Clark
that, henceforth, employees with efficiency ratings above 70
percent would be hired, by seniority, unless a good reason
existed for not hiring a given individual. Fifty-two Case Cut-
lery employees, all meeting those criteria, were rehired be-
tween January 21 and the end of March.
At some point, management decided that all employees
who were rehired before June 1, 1991, would receive credit
for their length of service with Case Cutlery for the purpose
of the 401(k) retirement plan and vacations. Anyone hired
after that date would not be eligible for the 401(k) plan until
January 1993. It was further decided that no former employ-
ees would be hired after June 1 in order to avoid having em-
ployees who might be disgruntled at the loss of their retire-
ment and vacation benefits.4
Immediately prior to the June 1 cut-off, management
looked at long-term older employees of Case Cutlery who
were either marginal in efficiency or who had been satisfac-
tory employees not yet recalled because of a lack of need for
someone in their job classification. After checking with
counsel, it was decided that individuals meeting those cri-
teria, who had efficiency ratings of at least 65 percent, would
be recalled. Three former employees, Richard Skillman, Viv-
ian Bottorf, and Richard Salada, with seniority dating to
1959 or earlier, and efficiencies between 66 and 69 percent,
were hired before June 1. All but Skillman were between 60
and 62 years of age; they had been in labor classifications
3 and 4 and were placed in new labor grade 1. Skillman, 43
years old but with 25 years of service at Case Cutlery, had
been a labor grade 5; he was placed in new labor grade 2.
Each took a cut in pay of between 65 cents per hour
(Skillman) to $1.32 (Bottorf).
Also hired at that time were Virginia Kerstetter and Walter
Makin. Kerstetter was 60 years of age with 16 years of se-
niority and an efficiency rating of 113 percent. Union Local
Lodge President Walter Makin had been a master mechanic
A, paid at the top of classification 10, $13.83. He was 54
and had 31 years of seniority (fourth longest among those re-
called). As he was considered indirect labor, his efficiency
had not been rated. He was recalled at the top of new grade
5, $13.50 per hour, the first grade 5 hired since December
10.
All the former Case Cutlery employees who were hired
were given interviews first. Three union officers/stewards
who are alleged as those discriminatorily denied rehire, and
some other individuals with no outstanding union activity,
were not called for interviews. According to Dale Clark, they
did not interview any of those Case Cutlery employees who
had been placed in a definite ‘‘do not hire’’ category during
the initial review of ATM records or any of those whose ef-
ficiency ratings fell below 70 percent in the second wave of
hiring.
In the course of the pre-June 1 hiring, nine were offered
jobs and turned them down (Jt. Exh. 1(a)). Twenty-eight in-
active employees (those laid off before November 29) made
application and were rejected (Jt. Exh. 1(b)). Approximately
122 active and inactive employees were hired. (Jt. Exhs. 1(e)
and (f).) Included in this group were five union officers or
stewards, including Shirley Barrett, recording secretary and
one of the most active adherents, and Walter Makin, who,
as noted, was not rehired until late May.
Pursuant to Armstrong’s direction, no former employees
were hired after June 1, because of the possibility of ill-will
among those who lost their seniority and seniority-related
benefits.
Twenty-six active employees applied but were denied re-
hired. (Jt. Exhs. 1(c) and (d).) Included in this group were
Local Lodge Vice President Anthony Danias, Steward and
Local Lodge officer Susan Keller, and Steward Kenneth Van
Curen. The General Counsel alleges that these three individ-
uals were denied reinstatement, and that Makin’s reinstate-
ment was delayed, because of their union activities and affili-
ation.
The parties stipulated that since June 1 new employees
have been hired and trained to perform jobs which the al-
leged discriminatees could perform and had performed in the
past. It was also stipulated that all four of the alleged
discriminatees had good attendance records and that their at-
tendance was not an adverse factor in the Employer’s deci-
sion not to hire them. All but one of the new hires came in
at the lowest pay rates for labor grades 1 and 2. One indi-
vidual was hired at the top of grade 5.
Turning now to the particulars with respect to the alleged
discriminatees.
2. Walter Makin
Makin began his employment at Case Cutlery in 1959. He
had experience throughout the plant, having worked in both
production and indirect labor jobs. Makin had completed an
extensive apprenticeship training program and, at the date of
his termination was a master mechanic A, labor classification
10, at the top of Case Cutlery’s pay scale. He made and re-
paired machinery, and he maintained and repaired the heating
system and other plant equipment. He also instructed other
employees in the grinding, milling, and drilling operations.
Over the last 2 years, and as recently as early November,
Makin’s work was complimented by various supervisors, in-
cluding Clark, Runyan, and Tom Russell. He had received no
oral or written disciplinary warnings and had never been as-
1460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Like Makin, Peterson had received a negative termination report.
signed a disciplinary suspension. However, the notes made
on his ATM record, dated November 29, 1990, state:
Termination Remarks: Did not work up to abilities,
much wasted time, opinionated, difficulty in accepting
others’ ideas. Quality of work average. Quantity of
Work—fair.
As indirect labor, he did not have an efficiency rating.
Makin had been a member of the Union throughout his
employment. He had been the Local Lodge president for 5
years at the time of his termination and had also been presi-
dent from 1975 to 1984. Prior to 1975, he had been the vice
president. As president, he was chairman of the negotiating
and safety committees and he had negotiated five collective-
bargaining agreements with Respondent’s predecessors. He
also attended the monthly agenda meetings held between
management and the Union, where problems were resolved
before they became grievances. As noted, he and Anthony
Danias attended the bankruptcy proceedings held in Ten-
nessee in October and November. While they did not testify
or personally take any positions on the disposition of the as-
sets, their presence was noted by Respondent’s representa-
tives and the Union sought a delay in the proceedings for
time to put together an employee buyout. The request for a
delay was denied and the Union’s position did not affect the
price paid by Respondent for those assets.
In August, Makin questioned Supervisor Dave Souther
about the transfer of two senior employees out of a work
area while junior employees remained. This, he told Souther,
was contrary to terms negotiated with the Company. Souther
replied, according to Makin’s uncontradicted testimony, ‘‘If
you are going to force me to stick to negotiated language,
it is costing too damn much money to do that.’’
Subsequently, in September or October, Makin objected to
Dale Clark about the Employer’s posting of weekly effi-
ciency ratings. He said the Union objected to the public post-
ing of information which could result in an employee’s dis-
cipline. He offered to have the employee and his steward dis-
cuss any efficiency problems with the supervisor. Clark, he
alleges, told him, ‘‘That is the way it is going to be and if
you are going to be so bull-headed about the posting of . . .
the efficiencies, perhaps we would be better off without you
here.’’ Makin recalled filing a grievance over the postings;
it fell through the cracks created by the bankruptcy filing and
was never resolved. He did not mention filing any grievance
over this alleged threat.
Clark recalled that Makin asked him to take down the
postings; he refused and both men were adamant in their po-
sitions. He recalled no grievance and denied that he made
any remark about the Company being better off without
Makin if Makin was going to be that bullheaded. Had he
made any such statement, he averred, Makin would have
complained to the head of the personnel department.
Both Makin and Clark testified with credible demeanor. It
is possible, given the tension in the plant stemming from the
Company’s tenuous economic condition, with bankruptcy
proceedings underway, that such an intemperate remark, like
Souther’s comment a month earlier, was made. It is equally
possible that something disparaging but less threatening was
said or that, as indicated by the failure to make an issue of
the alleged threat at that time, Makin simply brushed off
whatever was said as unintentional hyperbole. Given this
state of the record, particularly Makin’s failure to complain
at that time, I cannot find that Clark made the statement as
Makin attributed it to him.
The first three employees brought back came from among
the skilled maintenance workers supervised by Tom Russell.
Russell, Clark, Griffey, and McIntosh made the selections.
One master mechanic A, Makin’s classification, was needed;
Tom Wolff, who had been the group leader and who was
given a much more favorable appraisal by the reviewing su-
pervisors, was chosen. Also selected was Dick Sheeley, elec-
trician A. Both had been at the top of labor grade 10 and
were recalled at the top of new labor grade 5 at $13.50 per
hour (88 cents and 33 cents per hour less than they had been
making). The third man was William Burns, who was a
maintenance machinist, labor grade 8. He was rehired to do
the less skilled work and was placed in new job grade 3 at
$9.13 per hour, 19 cents per hour less than his old rate. Al-
though Makin could have done the work Burns was rehired
to do, he was not selected to do it because of Respondent’s
policy of not rehiring employees at more than one pay level
below what they had been earning. Makin was at Burns’
level in 1985 and had risen two levels since then.
Similarly, Mark Stormer, formerly a grade 9, returned as
a hafter, grade 3, in December, at $2.15 per hour less than
he had been making. He subsequently bid successfully on a
grade 3 trainee job in maintenance. His rehire was at the
equivalent of one pay grade less than that at which he had
been working. Neither Makin nor Martin Peterson, the other
master mechanic A and like Makin a grade 10, was offered
that maintenance job. Either of them could have done the
work bid on by Stormer. Peterson, in fact, was never offered
a position by Respondent.5
The General Counsel points to Respondent’s rehire of
Dick Young to indicate that it had no firm policy of refusing
to hire an employee back at a much lower grade level and
hourly rate. Young had been a tool-and-die maker A, labor
grade 10, earning $13.50 per hour. He was hired back on
February 4, in labor grade 4, at $9.75 per hour, the top of
that scale and essentially equivalent to the old labor grade 9.
Notwithstanding that Young took a substantial cut in pay, he
was not reduced more than one labor grade, new grade 4
being the equivalent of old grade 9; his rehire was not con-
trary to the policy as claimed by Armstrong. Moreover, Rus-
sell, who was no longer employed by Respondent, testified
without contradiction that Young was brought back because
he was the only person qualified to fill an immediate need
for a die repairman.
Counsel for the General Counsel also referred to Joint Ex-
hibit 8 as showing that a total of 80 employees dropped three
or more labor grades. Her analysis ignores the fact that the
eight labor grades were consolidated into five with the great-
est concentrations in the lower grades. The number assigned
to the new labor grades is meaningless for the purposes of
this comparison. The grades and pay rates assigned to these
rehires show that while some of them returned at one grade
level below what their former grade would have equated to
(i.e, some former grade 9s returned as new grade 3s rather
than as new grade 4s and some former grade 8s returned as
new grade 2s rather than as new grade 3s), in fact, they did
1461W. R. CASE & SONS CUTLERY CO.
6 There do appear to be four individuals, James DeFilippo, Richard
Fowler, Charles Little, and Karen Stebbins, who had been in former
labor grade 9 but who were hired back in new labor grade 2 at $2.32
less than their old rate. These were not alluded to by counsel for
the General Counsel in the hearing or brief and no explanation has
been offered by Respondent.
7 When, on January 25, the Respondent furnished the Union with
a list of its new labor grades and wage rates, correlated with the job
classifications within each grade, it included a ‘‘material handler’’
job classification among those at labor grade 1, paying from the
minimum of $5.50 to $7 per hour. There is no evidence that anyone
was ever hired to fill such a position. (Jt. Exhs. 6 and 17.)
not lose more than the equivalent of one of the old labor
grades when they were rehired. That was the criteria set by
Armstrong.6
3. Anthony Danias
Anthony Danias was hired in 1971. He worked in the cab-
inet shop until that department closed in 1986, in sub-
assembly and assembly into 1988 and then successfully bid
on the material handler’s position, which he held until his
termination. As a material handler, he moved throughout the
plant, delivering raw materials, moving parts and equipment,
and removing waste and garbage. He was in labor grade 4,
at $8.32 per hour.
Danias was a union member since 1972; since 1988, he
had been the Union’s vice president, chief steward, and
member of the negotiating committee. As chief steward, he
appointed stewards, investigated complaints, generally
‘‘policed’’ the contract, attended the agenda meetings, and
handled grievances at the second through sixth steps. He was
considered among the Union’s most active adherents. As
noted, he attended the bankruptcy proceedings along with
Makin.
Danias submitted a timely application to Case Cutlery; he
was never called for an interview or hired. According to
Clark, Danias was rejected in the first round of applicant re-
views because he was slow and hard to motivate. Manage-
ment, he said, had received complaints from other employees
about Danias’ job performance and Danias’ lack of industry
was the subject of employee humor, including posters and
visual jokes. Clark’s description of Danias’ performance was
corroborated by Ralph Ward, his supervisor, and Tom Rus-
sell, supervisor of another department who observed Danias’
work. Case Acquisition eliminated the material handler job
and did not replace Danias in that position.7
Danias testified, without contradiction, that Clark had
complimented him for a time-saving innovation in the mate-
rial handler’s job shortly after he assumed that position. De-
spite the complaints about his work, he was never suspended
or given either an oral or written warning. However, in Sep-
tember 1989, Ward had told Danias that he was not satisfied
with Danias’ job performance, particularly with respect to
compliance with the job priorities Ward had established. A
written ‘‘record of discussion’’ was placed in Danias’ file,
memorializing this conversation (R. Exh. 2.) Danias ac-
knowledged having disagreements with Clark over what
work was within his job description and expected of him.
Clark did not discipline Danias, despite his dissatisfaction,
because that was the function of Line Supervisor Ward. In
general, Clark asserted, no formal discipline was issued to
any of the employees in the last few years because, with the
turmoil arising from Case Cutlery’s declining economic posi-
tion, management did not want to provoke grievances. The
record does not contain evidence of discipline of other em-
ployees.
Respondent’s witnesses denied that Danias’ union activity
figured into the decision not to hire him.
4. Susan Keller
Susan Keller was hired as an assembler in 1983. She
worked in that capacity for 12 years and was a checker,
labor grade 4, at $8.32 per hour, at the time of her termi-
nation. Keller submitted a timely application but was not
hired or called for an interview.
Keller was third in seniority among the checkers. At least
two of the less senior checkers, Goodsell and Pessia, were
hired in the first hiring round. While there were no prepared
year-to-date efficiency figures at that time, the subsequently
prepared report indicates that they had efficiency ratings of
approximately 70 and 59 percent, respectively. Keller, how-
ever, is shown in the subsequently prepared report as having
a 95.69-percent efficiency rating.
Keller was a longtime union member and for the last 2
years had been the departmental steward in two departments.
She was one of the four most active union member-stewards.
As steward, she regularly handled employee complaints,
dealt with the foremen about discipline, overtime, and safety
and attended monthly agenda meetings with management.
Twice in the summer of 1990, she said, she had talked super-
visors out of issuing ‘‘pink slips’’ over employee effi-
ciencies.
On one occasion in October 1990, when Keller adjusted
a seniority dispute with Wickwire, Wickwire told her, ‘‘Boy,
I knew I was in trouble when I had to deal with you.’’ She
replied, ‘‘Don’t you forget it,’’ and both laughed. On another
occasion in the same month, she protested to Clark about the
movement of employees without regard to their seniority.
Clark told her that she should not get excited and should
watch her blood pressure. He said that there was a major
problem and asked her to work with him on it. She agreed,
as long as he went by the book. Keller acknowledged that
the ‘‘blood pressure’’ remark was occasioned by her voice,
‘‘that carries.’’ She also admitted that she sometimes yells
and curses, but denied doing so in the course of her griev-
ance handling.
Clark testified with respect to what appears to have been
the last incident. He had, with Makin’s approval, transferred
an employee out of seniority. Keller, he said, became very
upset and was yelling and screaming, questioning why the
employee, who she said was not qualified, was put on a par-
ticular job. Clark spoke with Makin, and Makin allegedly
agreed that he had problems with Keller. Makin described
Clark as exaggerating the extent of Keller’s upset, but admit-
ted finding her ‘‘a little bit upset about’’ the issue.
According to Clark, Keller was excluded in the first round
of considerations because she was loud and disruptive in the
department. In that review, the committee entered the fol-
lowing notation on her ATM record:
Personality immature, impulsive, indecisive, unstable.
Opinionated-difficulty in accepting other ideas.
1462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The incidents, involving Rose Hvizkzak and Nancy Bacha, were
minor and subject to differing interpretations by third persons, such
as Runyan. In each, Keller denied having upset the other employee;
Hvizkzak and Bacha did not testify. 9 Freer was rehired on January 29.
Clark agreed with this evaluation and characterized her
personality as like ‘‘Jekyll and Hyde.’’ He said that her deci-
sions, whether on union or personal matters, were immature
and did not make sense. She got upset, he said, without
learning the facts and she tended to blame others. Clark testi-
fied that Keller’s reputation among her fellow employees, a
factor which was considered, was that she was ‘‘over-
bearing.’’
Respondent cited several incidents to demonstrate Keller’s
alleged failings. In January 1990, she had put in for a June
vacation and requested that her paycheck be available a day
early to accommodate her vacation plans. The Employer had
made such accommodations for others and promised to do
the same for her. Keller reminded her supervisor of the re-
quest several times before she was to leave on vacation.
However, when she went to get the check, on the Thursday
she had planned to leave, it was not there. She swore at one
of the office employees (‘‘That is really God damn nice!’’)
and it was reported to Clark that she was in her department,
very upset, crying, and screaming while 15 other employees
were supposed to be working. Clark went to her, explained
why the check was not ready and, to calm her down, offered
to lend her money from his own pocket. She rejected his
offer, saying that she wasn’t going to borrow ‘‘any God
damn money from anybody in here’’ and didn’t ‘‘want his
f—king money.’’ She subsequently arranged for a family
member to wire her the funds and left on her vacation with-
out picking up her check.
Clark also understood that there was a problem between
Keller and another employee in her department, Adeline
Pearce, involving Keller’s cigarette smoke. As Clark under-
stood it, Pearce repeatedly complained that Keller would
place her fan so as to blow smoke toward Pearce. Keller de-
nied this, asserting that Pearce had been disturbed by the
smoking of another employee, that Runyan had asked Keller
to resolve the conflict, and that she had done so in such a
way as to leave the two employees as good friends. Runyan
did not mention this incident and Pearce did not testify. Kel-
ler was never disciplined for causing cigarette smoke to blow
toward another employee.
Runyan testified that she had been Keller’s supervisor for
5 years. They got along ‘‘pretty good,’’ she testified, and
worked well together. However, repeating Clark’s description
of Keller as having a ‘‘Dr. Jekyll and Mr. Hyde’’ person-
ality, she stated that she did not want to hire Keller back.
Keller’s moods, she claimed, bothered other workers more
than they did her, and when Keller was in a bad mood, it
would adversely affect the production of other employees in
the department. She described several incidents in which
Keller had allegedly upset her fellow employees.8
Runyan also described an incident wherein Keller had a
dispute with Ken Burkenstack, the quality control manager,
over the standards to be applied in passing knives for ship-
ment. Keller, Runyan stated, would not accept Burkenstack’s
criteria and, at one point, said that she would no longer talk
with him. However, even after saying this, she continued to
go to Burkenstack with quality control questions. When
asked whether she had ever stopped talking to Burkenstack,
Keller answered, ‘‘Not really, no.’’ She said that they would
discuss quality control questions at least once a day; some-
times she would agree with him on passing an item, some-
times he would agree with her. Burkenstack, no longer em-
ployed by Respondent, did not testify.
Supervisor Tamra Cousins described an incident in the
summer of 1990, arising over the use of an intake fan. The
employees in Cousins’ department wanted the fan turned off
because it made their section too cold; the employees in the
hafting department wanted it kept on because their depart-
ment became hot and stuffy without it. The controls were in
the maintenance department and, repeatedly, Keller went to
maintenance to have them turned on. Shortly after she would
do so, someone else would turn them off. According to
Cousins, Keller ‘‘barged’’ in to her office, interrupting a
phone conversation, and started yelling, in terms loud and
vulgar, about the fans being turned off. Keller testified that
when she went in to Cousins’ office she did not notice that
Cousins was on the phone; when she did, she told Cousins
that she would wait. She admits asking Cousins, ‘‘Who the
hell was monkeying with the fans?’’ and stating that Makin
had said that she was to leave her ‘‘damn hands’’ off of
them. She denied other obscene statements attributed to her
by Cousins.
The foregoing incidents involve credibility less than per-
ception. Keller admits that she has a ‘‘voice that carries’’
and does not deny swearing and, on occasion, getting upset.
She denied that the incidents occurred or were as bad as the
supervisors recalled them. I conclude that there were a num-
ber of incidents involving Keller; they may not have been
quite as bad as they were described by others, but they were
louder and more vulgar than Keller thought them to be.
Keller was never disciplined or counseled regarding either
her work or her conduct in the plant. Erica Runyan, her su-
pervisor, had regularly complimented her work performance,
with such statements as, ‘‘I wish I had more people like
you.’’ She was also complimented on her completion of a
particular order by Clark, who noted that it would not have
gotten done without her. She was not disciplined, Clark said,
because, given the Company’s economic problems, manage-
ment sought to avoid additional problems.
Shirley Barrett was another union officer-steward who
worked in Runyan’s department; she was also considered
among the most active of the union members. Barrett was re-
hired in the first group of returnees, December 4, 1990.
5. Kenneth Van Curen
Kenneth Van Curen had occupied various production jobs
since commencing his employment at Case Cutlery in 1970.
For the 9 months before the November 29 termination, he
had been a straightener (cutler), labor grade 5, at $8.61 per
hour.
Van Curen, a union member throughout his employment,
had been a steward on the night shift in 1988. In about Au-
gust 1990, Makin appointed him to be a steward in depart-
ment 519. Plant Superintendent Clark and Personnel Director
Mawn were both informed of his appointment. Clark did not
recall that he was a steward and understood that the steward
in that department was Scott Freer.9
1463W. R. CASE & SONS CUTLERY CO.
10 Contrary to the contention of the General Counsel, I do not find
Clark’s failure to recall that Van Curen was a steward to be indic-
ative of a guilty mind. Given Van Curen’s limited activity and the
ongoing threat to the survival of the business which was pressing on
everyone’s minds, such a failure is not incredible. Moreover, while
Van Curen pointed out a seniority problem to Clark, which was ap-
parently corrected the following day, it is stretching to call this the
settlement of a contractual dispute between Van Curen and Clark.
The evidence does not show any causal connection, other than tem-
poral, between their brief conversation and the change in assign-
ments the following day.
11 NLRB v. Burns Security Services, 406 U.S. 272 (1972).
In September, when rumors of an imminent sale of the
business were prevalent, Van Curen pointed out to Clark that
a less senior employee was doing work which should have
gone to someone more senior. Clark replied, ‘‘Don’t worry
about it, none of you will be here for long.’’ Van Curen con-
nected the statement to the rumors and did not take it person-
ally. The following day a more senior employee was
switched back into that job. Van Curen had no recollection
of any other activity which might be deemed union related.
Van Curen submitted a timely application but was neither
interviewed nor hired. His record was reviewed on December
1 and Supervisor Wickwire noted on his ATM record, ‘‘Poor
utilization of time—efficiency—also poor attitude. No drive,
ambition limited.’’ That record reflected that a record of dis-
cussion had been entered into his personnel file on August
14, 1990, wherein he had been told that he ‘‘needs to utilize
his time before breaks, lunchtime and at the end of the shift.
Work until the bells.’’ He was excluded on the first round
of hiring, but not as one who would definitely not be hired.
Van Curen had never been suspended, had not received
any disciplinary warnings in the past 10 years, and had re-
ceived a number of merit increases. In his last job perform-
ance review, in January 1990, Clark had rated him as above
average in dependability and cooperation but below average
in productivity. The year-to-date efficiency report (not avail-
able when the initial review was made) indicates an average
efficiency of 37.90 percent for Van Curen. That rating elimi-
nated him from subsequent consideration for hire.
C. Recognition and Withdrawal
As noted, Respondent did all of its hiring from among the
Case Cutlery employees until June 1, 1991. By December
13, it had hired 80 of those employees and had maintained
much of the supervisory staff, had resumed production of the
same products, for the same customers, in the same plant and
with the same equipment.
On December 19, the Union, claiming that Case Acquisi-
tion was both an alter ego and successor to Case Cutlery,
submitted a written demand for recognition and application
of the collective-bargaining agreement. Armstrong referred
the demand to counsel, and so notified the Union.
On January 7, counsel for Respondent wrote the Union,
acknowledging successorship but denying alter ego status.
On behalf of Respondent, he agreed to recognize the Union,
expressly basing that recognition on the presumption of con-
tinued majority status and without any independent proof of
majority support. The Union was told that the terms and con-
ditions of employment which Respondent had unilaterally es-
tablished on acquiring the assets would be continued until
changed through negotiations or after impasse. Thereafter,
the Union requested certain information for negotiations, that
information was furnished and plans were made to begin bar-
gaining.
On February 13, however, Respondent’s counsel withdrew
the recognition previously granted, stating that Respondent
had ‘‘received objective evidence that a large majority of our
employees no longer desire to be represented by your organi-
zation.’’ It is not disputed that the Employer had received a
petition to that effect signed by a majority of its employees.
D. Analysis and Conclusions
1. The alleged discriminatory refusals to hire
The General Counsel bears the initial burden of estab-
lishing a prima facie case of discriminatory motivation for
the refusals to hire, or to hire earlier, the alleged
discriminatees. Wright Line, 251 NLRB 1083 (1980), ap-
proved by the Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Such a prima facie
case is made out by proof of employee union activity, along
with employer knowledge of, and employer animus toward,
it. Associated Milk Producers, 259 NLRB 1033 (1982).
In the instant case, the union activity of Makin, Danias,
and Keller was overt and substantial. Similarly clear was the
Employer’s knowledge of that activity. Van Curen’s union
activity was of a much lower level, a recent appointment as
a departmental steward, following an earlier stint in that role
on another shift, and a single conversation with a member
of management in the nature of protected or union activity.
His appointment was made known to both the personnel di-
rector and the plant superintendent; knowledge was thus es-
tablished.10
The more difficult question is whether the General Coun-
sel has proven union animus. The only evidence to which
counsel for the General Counsel alludes is: (1) Clark’s re-
mark to Makin in September or October when Makin pro-
tested the posting of the efficiency reports; (2) Armstrong’s
testimony regarding the need to reduce labor costs in order
to be competitive; and (3) Armstrong’s remarks at the intro-
ductory meeting in which he told the employees that Case
Acquisition would not recognize the contract and, in inviting
all existing employees to submit applications for employment
with the new concern, stated that ‘‘there is uncertainty about
future production plans.’’ I have found that the former did
not occur as Makin described it. Armstrong’s statements, ad-
mittedly made, are entirely innocent of any taint of animus.
Armstrong made no threat, even by implication, at the No-
vember meeting. He stated Respondent’s legal right under
the authority of Burns,11 and both his testimony about reduc-
ing costs and Respondent’s refusal to adopt the existing col-
lective-bargaining agreement reflect an economic imperative
as Armstrong saw it. That future production plans were un-
certain was a truism, self-evident from the nature of the
Company’s acquisition, through the bankruptcy court.
The essential premise of the General Counsel’s case is that
the Employer was motivated by an intention to undermine
and eliminate the Union by removing its strongest supporters.
The facts, particularly that it placed itself in such an obvious
successorship position, hired a majority of the Union’s offi-
cers and stewards and recognized the Union so readily, belie
1464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 Examination of these contentions is coextensive with the review
of those justifications which would be required were I to find that
the General Counsel had established a prima facie case. It is simi-
larly coextensive with consideration of whether any of these individ-
uals was discriminatorily denied employment because of his or her
individual union activity, apart from what I have referred to as the
General Counsel’s principal premise.
13 Counsel for the General Counsel also argues that such phrases
in the appraisals of Makin and Keller as ‘‘opinionated’’ and ‘‘dif-
ficulty in accepting others’ ideas’’ was a code for objectionable
union activist. The record establishes that not all the union’s officers
and stewards were described in such terms; it further reflects that
other employees, with no known union connections, were described
with the same or similar terms. The verbiage of the final appraisals
warrants no conclusion that Respondent was using the reviews to
mark and thereby exclude union officers or activists.
14 In those few instances, the employees suffered wage reductions
($2.32 per hour) which were substantially less than Makin would
have incurred had he been called back in new classification 3 or 4.
He would have had his pay reduced by either $4.70 or $4.08 per
hour, respectively.
15 This rationale applies, with equal force, to Respondent’s deci-
sion to cut off the rehiring of Case Cutlery employees after June 1.
It may well be that had it not adopted such a policy, it could have
secured employees who would have been immediately productive,
without the need for extensive training. It might also have rehired
employees who had not previously been particularly productive, such
as Danias and Van Curen, and/or who would have quickly become
disgruntled by their reduced pay and benefits.
such an intent. Respondent was represented by able and ex-
perienced labor counsel. Had it intended to operate nonunion,
steps could have been taken to prevent, or at least make
more questionable, successorship status. Those steps were
not taken. Rather, Respondent invited all existing employees
to apply, hired only from among the predecessor’s employees
for more than 6 months, maintained wages reasonably close
to those paid by its predecessor, thus attracting applications
from most of the predecessor’s employees, and satisfied all
of the other successorship elements.
More significantly, when faced with the demand for rec-
ognition which the foregoing facts made inevitable, Respond-
ent admitted its role as a successor, granted recognition with-
out hesitation, provided the Union with information nec-
essary for collective bargaining and scheduled the opening of
negotiations. Respondent did not seek to delay recognition by
insisting on litigating successorship. It was only when faced
with a unequivocal expression of majority opposition to con-
tinued representation that it withdrew recognition.
The General Counsel’s premise requires a conclusion that
Respondent would have been able to forecast that the alleg-
edly discriminatory actions would bring about disaffection
with the Union. I cannot find that Respondent was that pre-
scient. In this regard, I note that at the time of the employ-
ees’ petition, Respondent was still in a hiring mode. Some
union officers had already been hired and the employees
could not have known whether or not the remaining officers
were going to be hired or ultimately denied rehire. Moreover,
Respondent had recognized the Union and expressed a will-
ingness to bargain. That was hardly a set of circumstances
calculated to undermine union support.
Finally, counsel for the General Counsel argues that weak-
nesses in the Employer’s justifications for refusing to hire the
four establish its animus.12
In the November meeting, Respondent implied that all ap-
plicants would be interviewed; counsel for the General Coun-
sel pointed out that three of these four individuals were never
called in for interviews and Makin was not interviewed until
shortly before he was rehired in late May. However, the
record reflects that no applicants were interviewed until
shortly before they were to be hired and that other appli-
cants, those deemed unacceptable for reemployment, were
never called for interviews. There was no discrimination in
the granting of preemployment interviews.
The record reflects that Respondent hired only one master
mechanic A, Tom Wolff, in all the months prior to Makin’s
reemployment. Wolff was the group leader of the group in
which Makin had worked; he was also evaluated most favor-
ably when each of the employees was reviewed for possible
rehire.13 Preference given to the group leader, who would
generally be the most respected individual in a classification,
is logical and unsupportive of any inference of discrimina-
tion. There were no other positions, in Makin’s job classi-
fication and at his grade level, until May and, when such an
opening arose, it was offered to him.
Respondent contends that it did not hire Makin earlier be-
cause of a policy precluding the return of employees at more
than one grade level below that which they had formerly
been employed. That policy, which Respondent followed in
all but a few isolated instances,14 harshly affected some em-
ployees, including Makin.
Respondent’s assumption that employees would resent of-
fers of lower paying jobs or become disgruntled if they ac-
cepted such an offer may have been presumptuous or burden-
some in a tight job market, as counsel for the General Coun-
sel implies. However, the avoidance of overly qualified or
previously more highly paid employees is an accepted hiring
practice. See Parcinski v. Outlet Co., 674 F.2d 34, 37 (2d
Cir. 1982); Ridenour v. Lawson Co., 791 F.2d 52, 57 (6th
Cir. 1986). These cases, arising under the Age Discrimina-
tion in Employment Act, 29 U.S.C.A. § § 621–634, find such
policies to be legitimate business decisions, permissible in
the context of age discrimination allegations. As Respondent
argues, it is not for the Board to second-guess such business
judgments. Allbritton Communications, 271 NLRB 201, 204
(1984), enfd. 766 F.2d 812 (3d Cir. 1975).15
The counsel for the General Counsel argues that, contrary
to the pictures painted of them by Respondent, Danias, Kel-
ler, and Van Curen were good, productive employees and
that the failings attributed to them were pretextual. In par-
ticular, it is argued, had they been as bad as Respondent
claimed, they would have suffered some measure of dis-
cipline during their employment. This argument would be
persuasive if the record indicated that Respondent had a
practice of disciplining employees with warnings and suspen-
sions. The record, however, is devoid of any evidence of
such a practice; Respondent rarely, if ever, went beyond the
occasional use of a record of discussion.
With respect to Danias and Van Curen, the record amply
supports Respondent’s contentions. There was no contradic-
tion of the testimony regarding the perception of Danias by
both supervision and his fellow employees as one lacking in
industry. Even Danias acknowledges arguing with super-
vision about what work he was expected to do within his job
description. There is also no evidence disputing Respondent’s
claim that no one was hired to fill the material handler job
1465W. R. CASE & SONS CUTLERY CO.
16 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
which he had occupied. Similarly, the record, particularly the
year-to-date efficiency record, amply supports Respondent’s
contentions and opinion regarding Van Curen.
Susan Keller presents the most difficult case. She was
clearly an highly efficient employee, praised for her own
work. In terms of productivity, she was the kind of employee
Respondent was seeking in its new work force. She was,
however, loud, aggressive, and emotional in her dealings
with others, whether acting on her own behalf or in a rep-
resentative capacity. Her emotional outburst when confronted
with a delay in providing a promised early paycheck amply
supports management’s perception of her. Moreover, she was
perceived by supervision as impeding the productivity of oth-
ers by her demeanor; that perception, whether fully war-
ranted or not, was real and, I find, the motivating factor in
failing to offer her employment. Given the absence of ani-
mus, particularly any evidence which would indicate that Re-
spondent was inclined to violate the Act in order to avoid
dealing with the Union generally or with Keller as its stew-
ard in particular, I am compelled to find that Respondent
would have refused to hire Keller whether or not she had en-
gaged in union activity.
As counsel for the General Counsel argues, the refusal to
hire three of the four most active union adherents, including
the two top local officers, is ‘‘deeply suspect.’’ However, in
light of the absence of evidence of animus, indeed in light
of facts negating animus, and the existence of valid business
justifications for declining or delaying their hire, that sus-
picion does not rise to the level of proof required to establish
discriminatory conduct. Gateway Equipment Co., 303 NLRB
340 (1991). Accordingly, I shall recommend that the 8(a)(3)
allegations be dismissed.
2. The withdrawal of recognition
Having found no unfair labor practices tainting the Em-
ployer’s objectively supported good-faith doubt of the
Union’s majority status, I further find that its withdrawal of
recognition was lawful. I shall therefore recommend dis-
missal of the 8(a)(5) allegation as well.
CONCLUSION OF LAW
Respondent has not engaged in the unfair labor practices
alleged in the complaint.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended16
ORDER
The complaint is dismissed in its entirety.