Wells Aluminum Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1995

319 N.L.R.B. 798 (N.L.R.B. 1995)

798
319 NLRB No. 104
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We note that at sec. II, par. 7 in the ‘‘Analysis’’ section, the 14th
sentence should state in relevant part: ‘‘. . . Ankney was less than
candid regarding the role he played in Linder’s discipline.’’
In adopting the judge’s finding that it was appropriate to issue a
remedial order on the basis of the Respondent’s unlawful no-
solicitation/no-distribution rule, Member Cohen, unlike the judge,
does not rely on the Respondent’s failure to ‘‘admit wrongdoing.’’
Rather, he agrees that because the Respondent did not give adequate
‘‘assurances to employees that in the future their employer will not
interfere with their exercise of their Section 7 rights’’ and because
the Respondent engaged in other unlawful interference with those
rights after October 8, its posting of the new rule did not meet the
standards of Passavant Memorial Area Hospital, 237 NLRB 138,
138–139 (1978), for effective repudiation of unlawful conduct.
2 In agreeing with the judge that the defaced sample ballot would
not mislead employees into believing that the Board favored the
Union and that therefore the Respondent’s objection regarding the
ballot should be overruled, we rely on Brookville Healthcare Center,
312 NLRB 594 (1993). In that case, as in the instant case, the notice
of election included language specifically disavowing Board partici-
pation in any defacement as well as specifically asserting the
Board’s neutrality in the election processes. The Board held that this
language precluded a reasonable impression that any defacement re-
flected endorsement by the Board.
In adopting the judge’s finding that statements by a union agent
concerning work subcontracted to the Respondent by Navistar were
not objectionable, we note that the remarks were made at a single
union meeting in response to a question from an employee and that
this occurred 3 days after the Respondent’s plant manager had post-
ed a notice asking employees to consider whether the Union ‘‘would
be more concerned about its hundreds of members at Navistar and
stopping the outsourcing there [to the Respondent] or would it care
about the future of our plant and the lives of the fifty or so of us.’’
Thus, as in Van Leer Containers v. NLRB, 943 F.2d 786, 790 (7th
Cir. 1991), enfg. 298 NLRB 600 (1990), on which the Respondent
relies, it was the employer, and not the union, that introduced the
issue into the campaign, and there was no evidence of a ‘‘pattern
of coercion by the Union to convince the employees that a ‘Yes’
vote would preserve their jobs.’’ Were we to accept the Respond-
ent’s position on this objection, any employer whose work force is
the target of an organizing campaign by a labor organization that
represents the employees of another company that contracts out work
to the targeted employer would be able, by injecting the subcontract-
ing issue into the campaign, to put the union in an untenable posi-
tion. Giving inquiring employees an honest answer that reflects the
union’s obligation to seek to protect the job security of employees
it represents would put the union at risk of having any election vic-
tory set aside on the employer’s objection. Cf. Benjamin Coal Co.,
294 NLRB 572, 572 fn. 2 (1989) (no unlawful coercion found where
employer, in response to certain specific assertions in union cam-
paign material, described likely economic consequences of unioniza-
tion).
In support of its objection concerning the distribution of union
caps and T-shirts, the Respondent relies on both the Board’s decision
in Owens-Illinois, Inc., 271 NLRB 1235 (1984), and the court of ap-
peals’ decision in NLRB v. Schrader’s, Inc., 928 F.2d 194 (6th Cir.
1991). In Owens-Illinois, a divided Board panel set an election aside
because of the distribution of union jackets on election day between
voting sessions. In Schrader’s because there had been no hearing,
the court had to assume arguendo that the apparel at issue there had
been offered to all employees coming to work between the two vot-
ing periods. Id. at 195–196, 198. In the present case, although em-
ployee Shepherd testified that he had received about 25 T-shirts and
hats from Union Agent Robert Hamons and that he had distributed
‘‘some’’ on election day, most of Shepherd’s testimony concerned
making these pieces of campaign paraphernalia, along with union
buttons, available to employees attending union meetings. The two
other employees who testified on this subject and were credited both
testified that they each picked up a union cap and T-shirt at a union
meeting. In short, the Respondent, which has the burden on election
objections, has had its opportunity to present evidence and has not
established electioneering conduct rising to the level of that found
in Owens-Illinois or assumed arguendo, in the absence of a hearing,
by the court in Schrader’s.
Member Browning argees that this case is distinguishable from
Owens-Illinois, but she expresses no view as to the continuing valid-
ity of that decision.
Wells Aluminum Corporation, Sydney Division and
International Union, United Automobile, Aero-
space & Agricultural Implement Workers of
America, UAW. Cases 9–CA–29131, 9–CA–
29810, 9–CA–29877, and 9–RC–15953
November 30, 1995
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On August 7, 1993, Administrative Law Judge John
H. West issued the attached decision. The Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed an answering brief. The Respondent
also filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order as
modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Wells Aluminum Corpora-
tion, Sydney Division, Sydney, Ohio, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
Add the following as new paragraph 2(g).
‘‘(g) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.’’
CERTIFICATION OF REPRESENTATIVE
IT IS CERTIFIED that a majority of the valid ballots
have been cast for International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers
799WELLS ALUMINUM CORP.
1 The General Counsel’s motion at the hearing to change the name
of the Respondent from NAARCO Division to Sidney Division was
granted.
2 Subsequently, Murphy testified that the boy was 10 years old and
that, according to his mother, he said that he saw Daly snort the
white powder off of a glass.
3 Employee Millie Carol Shelby testified that Shepherd asked her
to sign a union authorization card while she was ‘‘standing there
working’’ in fabrication. Employee Juanita Walker testified that
Shepherd and Gaier approached her while she was working in the
lineal area pulling lineal and they asked her if she would sign a
union card.
of America, UAW, and that it is the exclusive collec-
tive-bargaining representative of the employees in the
following appropriate unit:
All production and maintenance employees, in-
cluding quality control, shipping group leaders,
purchasing/inventory control clerk, production
scheduler, engineering specialist/draftsperson, and
QSP clerk, at the Employer’s Sidney, Ohio facil-
ity, excluding manpower temporary employees,
office clerical employees, and all professional em-
ployees, guards and supervisors as defined in the
Act.
Debra Jacobson, Esq. and Eric Oliver, Esq., for the General
Counsel.
W. Melvin Haas III, Esq. and Jeff Thompson, Esq.
(Haynsworth, Baldwin, Johnson & Harper), of Macon,
Georgia, and John Smail, of South Bend, Indiana, for the
Respondent.
Robert Hamons, of Toledo, Ohio, for the Charging Party.
DECISION
JOHN H. WEST, Administrative Law Judge. The original
charge in Case 9–CA–29131 was filed by International
Union, United Automobile, Aerospace & Agricultural Imple-
ment Workers of America, UAW (the Union) on December
4, 1991. A complaint was issued on January 24, 1992. The
original charge in Case 9–CA–29810 was filed on July 29,
1992, by the Union and it was amended on September 10,
1992. The original charge in Case 9–CA–29877 was filed on
August 25, 1992, by the Union and it was amended on Sep-
tember 10, 1992. By order entered September 21, 1992, these
cases were consolidated with Case 9–RC–15953 and a con-
solidated complaint and notice of hearing issued. A second
consolidated complaint and notice of hearing was issued on
October 2, 1992. The RC proceeding involves objections
filed by Wells Aluminum Corporation, NAARCO Division1
(Wells) regarding alleged conduct that assertedly affected the
results of the election held on November 4, 1991. As pointed
out in the report on objections therein, dated September 11,
1992, alleged threats covered in one of the objections appar-
ently formed the basis, at least in part, of Wells’ decision to
discharge two employees, which discharges are alleged to be
unlawful. In the second consolidated complaint the General
Counsel alleges violations, collectively, of Section 8(a)(1),
(3), and (5) of the National Labor Relations Act (the Act)
in that assertedly Wells (1) maintained an unlawful no-solici-
tation rule, (2) selectively and disparately applied its bulletin
board policy by removing union literature and thereby pro-
hibiting the posting of union literature, (3) threatened em-
ployees that their wages and benefits would be frozen if they
selected the Union as their collective-bargaining representa-
tive, (4) impliedly promised employees increased benefits
and improved terms and conditions of employment if they re-
frained from selecting the Union as their bargaining rep-
resentative, (5) gave an employee the impression that his
union activities were under surveillance by Respondent, (6)
coercively interrogated an employee about his union sym-
pathies, (7) unlawfully discharged Stephen Linder, Michael
Shepherd, and Connie Murphy and, if the objections to the
election are overruled, (8) implemented changes in the em-
ployees’ terms and conditions of employment without pro-
viding the Union notice and the opportunity to bargain.
Wells denies violating the Act.
A hearing on these consolidated cases was held on Decem-
ber 2–4, 1992, and on January 12 and 13, 1993. Briefs were
filed in March 1993 by the General Counsel, Wells, and the
Charging Party/Petitioner. On the entire record in this pro-
ceeding, including my observation of the witnesses and their
demeanor, and after considering the aforementioned briefs, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, has been engaged in the manu-
facture and assembly of truck and bus parts at Sidney, Ohio.
The complaint alleges, Wells admits, and I find that at all
times material, Wells has been engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act, and the
Union is a labor organization within the meaning of Section
2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Facts
Wells has a number of plants, including the Sydney plant,
which is the plant involved here. In July 1991 John Miller
became operations or plant manager at Sydney.
In late August 1991 employees Shepherd and Mark Gaier
discussed having a union represent Respondent’s employees.
Gaier contacted a union representative.
According to the testimony of Murphy, sometime in the
fall of 1991 several employees were talking about the fact
that Group Leader Gene Daly’s nose was running all of the
time and one of the employees mentioned to the four other
employees there at the time that her son had been at Daly’s
house and saw Daly snorting a white powder.2
In early September 1991 five of Respondent’s employees,
including Shepherd and Gaier, met with the Union’s district
representative at a nearby union hall.
In mid-September 1991 about 30 of Respondent’s employ-
ees met and signed union authorization cards. Shepherd
signed a union authorization card at this meeting. Several of
the employees took cards with them. And subsequently cards
were signed at the plant. Shepherd took about 10 cards and
he testified that he had employees sign the cards either at
their homes or at the plant during lunch or break.3 Shepherd
800 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 It was estimated that Monroe is 6 feet 2 inches tall and weighs
about 250 pounds.
5 Miller testified that he took the petition for an election filed by
the Union personally in that he was not permitted the opportunity
to exercise his management style and that he did not feel personally
responsible for the union drive. Miller also testified that sometime
in October 1991 Shepherd told him that the organizing was nothing
personal toward him; that it was corporate and prior management;
and that he concluded that Shepherd was probably prounion. Miller
further testified that he took it personally in that he did not need a
third party to treat people fairly and that he prefers to work in shops
that do not have a union.
6 On rebuttal, both of these employees, both of whom are still em-
ployed at Respondent, testified that they never heard any such threat.
Both indicated that they support the Union.
7 In this October 16, 1991 affidavit to the Respondent, Hess indi-
cated that the threat to burn an employees’ house occurred about 2
weeks before he gave the affidavit. Hess testified that the threat to
burn the employees’ house was made the day after the October 7,
1991 union meeting. In another affidavit Hess apparently gave to the
Respondent on October 16, 1991, G.C. Exh. 12, Hess specifically re-
ferred to the October 7, 1991 union meeting by date. That affidavit
deals with what was said at the October 7, 1991 meeting which Hess
attended. In the October 16, 1991 affidavit dealing with the alleged
employee threats, the company attorney wrote ‘‘[t]he Company attor-
ney has asked me not to tell him or the Company the names of these
individuals. I will . . . tell the NLRB the names, etc., in a confiden-
tial manner.’’ In his subsequent affidavit to the National Labor Rela-
tions Board (the Board), Hess did not reveal the names. Hess testi-
fied that he was concerned about himself and his family; and that
he considered the fact that he and Shepherd had been good friends
for a long time.
testified that, after this, union meetings were held just about
every Monday night; that he would sit up front with the
other union organizers; that he would speak openly at these
meetings; and that he handed out union literature at the plant
during breaks.
Miller testified that he believed that the Union’s petition
for an election was filed sometime in September 1991.
In late September 1991, according to the testimony of
Wells employee Robert Gregory Monroe, he was in a local
bar and grill when Wells’ supervisor, Dale Kellis, told him
that he, Kellis, had heard that Monroe was one of the orga-
nizers for the Union and that Shepherd was an organizer
from the beginning. Kellis testified that he did have a con-
versation with Monroe in a local bar; that Monroe asked him
to come to the bar to discuss his, Kellis’, prior experience
being a member of the UAW; that Monroe initiated the con-
versation by asking him who had been accusing him, Mon-
roe, of being a union organizer; that he never told Monroe
that he, Kellis, knew that Monroe or Shepherd was a union
organizer; and that Monroe brought Shepherd up when he,
Monroe, said that Shepherd and Gaier ‘‘was doing this.’’ On
rebuttal, Monroe testified that he did not bring up the asser-
tion that people were saying that he had something to do
with starting the union campaign; that he did not and he had
no reason to bring up Shepherd’s name as a union organizer;
and that he did not ask to see Kellis after work since ‘‘[i]t
was enough seeing him at work.’’ Monroe also testified that
he could have had four or five lite beers4 in the hour or hour
and a half he was there; that he had been in that bar before;
and that he had never seen Kellis in the bar before.
In October 1991 Respondent revised its no-solicitation, no-
distribution policy and after the revised rule went into effect
union literature could be posted on the bulletin board in the
breakroom without management permission. Miller testified
that prior to the implementation of this revision, it was Re-
spondent’s practice to remove union literature from the bul-
letin board; that he was not sure if the employees in the past
did ask for management approval before placing something
on the bulletin board; that he removed union literature from
the bulletin board; and that the removal of union literature
from the bulletin board probably had something to do with
the fact that company literature was often defaced and re-
moved.5
According to the testimony of Wells employee Randy
Hess, about October 1, 1991, he heard Linder say that he
was going to burn employee Pat Shaw’s house down if she
did not vote for the Union. Hess testified that the alleged
threat was made on the plant floor by the cage where they
check their saw cut pieces; and that employees Bryan
Katterhenry and Robert Lovett were present. On cross-exam-
ination, Hess testified that Linder made his statement about
Shaw to all three of the employees who were standing there
and there was no doubt in his mind that the other two named
employees heard Linder’s statement;6 and that he, Hess, was
checking parts at the cage. Subsequently, according to the
testimony of Hess, he was back looking at some parts in the
area of Shepherd, who he socialized with, and in Hess’ pres-
ence, Shepherd said that if Obetta Sullenberger did not vote
for the UAW he was going to bash her head in; that the fol-
lowing Monday he was back in Shepherd’s area looking at
parts and Shepherd told him that Daly had been trouble and
if he did not want the UAW he, Shepherd, was going to bash
his head in also; that he did not want to say anything else
to Shepherd but rather he just wanted to get out of the area;
and that on that Monday he told Supervisor Jay Sargent
about the threats for the first time but he did not identify
who made the threats.
Hess then told other members of Wells’ management and
Wells’ attorney about the threats without identifying any of
the employees involved, and he gave an affidavit to the Re-
spondent on October 16, 1991 (R. Exh. 14), in which he
gave the content of the above-described threats but did not
identify either the individuals making the threats or who the
threats were directed against.7 Regarding the alleged threat to
burn down an employee’s house, Hess specifically indicated
that the person making the threat said it to three employees
who were present at the time. Later in October, Hess gave
an affidavit to an agent of the Board about the alleged threats
but again, as noted, he did not identify who allegedly made
the threats.
Miller testified that during his first meeting with Hess
about the threats, Hess said that he supported Miller and
Hess thought Miller deserved a chance; that Hess, without
giving names, mentioned that two other employees overheard
one of the threats; and that he did not recall ever asking Hess
for the names of the two other employees who allegedly
overheard one of the threats.
Daly, who was a leadperson on the third shift at the time,
testified that one evening early in October he received a tele-
phone call and the unidentified caller said that if he did not
stop knocking the Union he was going to get his head split
open; that he did not recognize the male voice; that he had
been vocal against the Union; that he told employees Mon-
801WELLS ALUMINUM CORP.
8 According to Shepherd, this occurred within 2 weeks of the elec-
tion. On cross-examination, Shepherd testified that this could have
occurred within a couple of days of October 8, 1991.
9 Shepherd introduced G.C. Exh. 10 which is a memorandum dated
October 8, 1991, which memorandum indicates that Shepherd and 11
other employees, who signed the memorandum witnessed Ankney
remove union literature from the bulletin board.
10 Lovett did receive a copy of the employee handbook when he
started work in 1988.
roe, Harry Kearns, and Norm McMillian about the call be-
fore the election; that Monroe and McMillian were eligible
to vote in the election but Kearns, who was a temporary em-
ployee, was not; that he told his supervisor, Kellis, about the
telephone call; and that he gave the Respondent a statement
about the telephone call 1 week later. Subsequently, Daly
testified that while he considered the telephone call to be a
serious matter he did not report it to the police department
because the local newspaper reports what is on the police
log; and that Miller told him that the telephone company re-
fused to put a ‘‘tap’’ on his line.
On October 4, 1991, Miller posted an open letter to em-
ployees on the bulletin board, Charging Party/Petitioner’s Ex-
hibit 1, in which he states, among other things, ‘‘do you be-
lieve the UAW would be more concerned about its hundreds
of members at Navistar and stopping the out-sourcing there
[to Wells] or would it care about the future of our plant and
the lives [of] the fifty or so of us?’’ Miller testified that he
posted the open letter in response to inquires of about 10 em-
ployees.
On October 7, 1991, the Union held a meeting for Re-
spondent’s employees. Hess, who attended the meeting, testi-
fied that one of the employees present asked Union Rep-
resentative Robert Hamons if some of Respondent’s Navistar
work, the door projects, would be moved back to Navistar;
that Hamons said that if the Union was voted in, it would
not try to take them from Wells because both would be
union shops but if the Union was not voted in, then the
UAW would try to take the door project out of Sidney and
take it over to Navistar in Springfield, Ohio; that at the time
about one-half of the work in the Respondent’s plant was
Navistar work; that 25 to 30 employees attended this meet-
ing; and that 25 to 30 of the employees who voted in the
election would be affected by a removal of the Navistar
work. Subsequently, Hess testified that the employee asked
the question referring to what was stated in Miller’s afore-
mentioned October 4, 1991 open letter; that 30 percent of
Respondent’s work at the time involved the Navistar door;
and that the next morning he discussed with five or six other
employees the possibility that if the Union was not voted in
certain of Respondent’s work would be lost. In a letter to the
Board dated July 28, 1992 (R. Exh. 34), Hamons explained
that when an employee asked a question about the aforemen-
tioned passage of Miller’s October 4, 1991 open letter, he
answered
that most jobs were sourced by the bidding procedure
in todays competitive manufacturing arena, but he felt
that the UAW would be less inclined to take work from
the Sidney plant if they were members of the UAW but
the UAW did not have the final say in the sourcing of
work.
Shelby testified that before the election she attended a
union meeting with about 30 employees; that Hamons started
the meeting by saying that company sympathizers would be
recognized and asked to leave; and that she was intimidated
by this statement and she did not ask any questions. Subse-
quently Shelby testified that she did not recall hearing some-
one ask from the floor if company sympathizers present
might go back and tell which employees attended the meet-
ing; that no one was asked to leave the meeting that night;
that a lot of questions about the pros and cons of a union
were asked at this meeting; and that there was no indication
at this meeting as to how company sympathizers would be
recognized.
Walker testified that before the election she attended a
meeting where just employees were present; that while no
union representative was present, the meeting was held at the
union hall; and that during the meeting she removed her coat
and when Shepherd saw the ‘‘Vote No’’ button she was
wearing he asked her to remove it or leave. On cross-exam-
ination, Walker testified that she did not leave the meeting
at that point, which was about midway in the meeting, and
she remained at the meeting for another hour; that she did
not remove her button; that in the affidavit that she gave to
the Board on December 4, 1991, she indicated that an em-
ployee named Debbie and also employee Peggy Austin were
actually the ones who asked her to remove her ‘‘Vote No’’
button; and that while her affidavit does not mention that
Shepherd asked her to remove her button, she recalls he did
since she thought a lot about the meeting after she gave the
aforementioned affidavit.
Regarding the bulletin board, Shepherd testified that he
was never informed about any rule with respect to getting
permission from management to post anything on the bulletin
board; that he never observed any company official remove
any employee notice about items for sale or benefit dances
etc.; and that he, observer Miller,8 and Production Manager
Bill Ankney remove union literature from the bulletin board.9
Lovett testified that before the union campaign he was not
aware of any rule regarding employees using the bulletin
board;10 that he was never told that employees had to clear
things with management before they were posted on the bul-
letin board in the breakroom; that notices regarding items for
sale and dance benefits were posted on the bulletin board;
that he never saw anyone in management take this type of
notice down; that he saw several people in management take
union literature down from the bulletin board; that on one
occasion he saw Ankney remove union literature from the
bullletin board and Lovett signed a memorandum to this ef-
fect (G.C. Exh. 10); and that on another occasion he saw
Miller remove union literature from the breakroom bulletin
board on November 6, 1991, and he and other employees
who were present signed, at that time, a memorandum to this
effect (G.C. Exh. 11). Monroe testified that he posted a res-
taurant menu on the bulletin board sometime before the
union campaign; that he did not ask anyone in management
before he posted the menu; and that the menu remained post-
ed for a couple of months. Katterhenry testified that prior to
the union campaign he was never told that he was required
to get management’s permission to post anything on the bul-
letin board; that shortly after the petition for election was
filed Miller told the employees during a group meeting that
they had to have permission before they could post anything
802 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 He conceded that in an affidavit to the Board he mistakenly in-
dicated that this occurred sometime in November 1991 after Novem-
ber 6, 1991. He subsequently testified that when he gave the affida-
vit he did not have G.C. Exh. 10 in front of him and he did not
see it after signing it until 1 week before he testified here.
12 On the day of the election he wore a union hat and T-shirt. He
had worn the union hat 2 or 3 days before the election. Linder
signed a union authorization card which Shepherd gave to him in the
parking lot during break.
13 Both of the evaluations are dated October 24, 1991.
14 Linder testified that the four occurrences were 1 day off due to
his mother’s hospitalization to determine whether she had cancer,
two tardies on returning back from lunch, and one occasion he for-
got to clock in after returning back from lunch and he forgot to have
his supervisor initial his timecard. The evaluation indicates that the
next occurrence would result in Linder’s termination. The comments
section of the 60-day evaluation contains no specific reference to
Linder’s alleged drop in production.
15 Walker, David Fair, and possibly other employees.
16 Monroe, on rebuttal, testified that he used the same saws that
Linder used and he, Monroe, made the parts that Linder made; that
he would not be surprised to see fluctuations in the hourly rate of
production on that saw; that the operator may have to sort for dam-
aged materials; and that the size of the blade might affect the opera-
tor’s production. On surrebuttal, Miller testified that while the saw
operator might pull a damaged part off the top of the stack, there
is no way that the Company can afford to slow down the saw for
the operator to look underneath for damaged parts. Miller conceded
on cross-examination that he did not train Linder on the saw. He
pointed out, however, that he knew the people who did train Linder
on the saw and he knew that they echo the same methods as he
does.
on the bulletin board; that before the union campaign he
never saw anyone in management remove anything from the
bulletin board; that after the union campaign commenced, he
saw Miller on November 6, 1991, remove a union fact sheet
from the bulletin board and put it in his pocket and walk out
of the breakroom; that he signed General Counsel’s Exhibit
11; and that he saw Ankney remove a union fact sheet from
the bulletin board on October 8, 1991,11 and Katterhenry
signed General Counsel’s Exhibit 10.
On October 8, 1991, Respondent posted a notice to the
employees on the bulletin board (R. Exh. 29) which indicates
when solicitation and/or distribution is prohibited. The indi-
vidual in personnel who placed the notice on the bulletin
board, Lynn Koverman, testified that before she posted this
notice she, pursuant to the instructions of Miller, removed
union literature from the bulletin board immediately; that
after this posting, she and the members of management were
told that they were to remove union literature only at the re-
quest of Miller; that she was never asked to remove any doc-
uments after October 8, 1991; that it was her job to post any
literature on the bulletin board and remove any literature;
that she removed outdated material; and that while it was her
understanding, in accordance with the employee handbook,
that an employee had to have prior approval to post some-
thing on the bulletin board, she had no way of knowing
whether employees posted notices on the open bulletin board
without prior approval. The production supervisor at the in-
volved facility, Joseph Chrismen, testified that Respondent
began to allow the publication of union material on the bul-
letin board after October 8, 1991.
On October 10, 1991, Respondent amended its employee
handbook (G.C. Exh. 2) by deleting the no-solicitation and
distribution rule contained therein.
On October 17, 1991, Miller posted the following, Re-
spondent’s Exhibit 28, on the bulletin board:
SPECIAL NOTICE
‘‘VERY IMPORTANT’’
TO: ALL WELLS/NAARCO—SIDNEY EMPLOYEES
Employees have reported threats by employees
against other employees because of their opposition to
the union. The threats include both bodily harm and
property damage. The threats violate the National Labor
Relations Act and other laws. The company will report
these threats to the NLRB.
The company will not tolerate threats in the work-
place. Employees should feel free to report to company
management any known threats. Employees may also
contact the NLRB directly to report such threats. Of
course, employees may ask me or any of the super-
visors if they have any questions on this matter.
John Miller
Linder testified that after he had worked for about 60 days
during his probationary period, or in other words, in late Oc-
tober 1991, Miller told him that he had an open door policy
and if Linder had any problems he could talk to him; that
he told Miller that he did not get his pay raise after his first
30 days; that Miller said that he would look into it; that
about 30 minutes later Miller explained the raise policy to
him; that he told Miller that the employees probably wanted
a union because nothing was done right as demonstrated by
the fact that he had not received his evaluation or pay raise
on time; and that he wore a union ‘‘Vote Yes’’ button to
work.12
Regarding his 30- and 60-day evaluations, Linder testified
that he received both of them on the same day (G.C. Exhs.
6 and 7),13 respectively; that he met with Ankney on October
24, 1991, regarding the evaluations; that Ankney said that he,
Linder, was doing a good job; that Ankney mentioned not
being on time; that Ankney asked him why his production
had dropped at one time; and that he explained to Ankney
that he was using a smaller cutting blade and, therefore, he
could not load as many parts on his saw. The comments’
section of the 60-day evaluation refers to two occasions of
miscounts and it is also indicated on the evaluation that
Linder’s attendance is a severe problem.14 Linder also testi-
fied that Ankney asked him about some miscounting.
Ankney testified that he had overlooked Linder’s 30-day
evaluation, along with the evaluations of other named em-
ployees;15 that in preparing for the evaluations he determined
that Linder’s production was dropping; that Linder’s attend-
ance and miscounts caused him concern; that Linder said that
his production drop was due to the fact that he was using
a smaller saw blade; that while, in his opinion, the smaller
blade would cause a drop in production, it did not account
for the amount Linder’s production dropped;16 that at the
time of Linder’s 60-day evaluation Ankney was not aware of
Linder’s union activity; and that he reviewed with Linder
certain documents dealing with production (R. Exhs. 18(a)
803WELLS ALUMINUM CORP.
17 When asked by counsel for the Respondent if he asked Shep-
herd what he did not like about the Company and what the Company
needed to do, Chrismen gave an unresponsive answer. Then counsel
for Respondent asked Chrismen whether he asked Shepherd about
what problems he had about the Company regarding the Union.
When the attorney said that he was referring to union activity,
Chrisman testified that all of the supervisors were instructed that
they were not to do that.
18 Smail testified that late in the week of November 5, 1991, he
agreed with Miller and Ankney that Linder should be terminated be-
cause of his productivity problems, attitude problems, knocking over
pallets, and using some bad language; and that it is his philosophy
that if there is doubt about a probationary employee, the Company
is better of to terminate the employee. On cross-examination the
General Counsel introduced an exhibit, G.C. Exh. 24(a), showing
that a probationary employee received a written warning in 1988 for
poor ratings and absenteeism and was advised in the warning that
she was being terminated effective November 11, 1988. She was not
terminated, however, until December 12, 1988.
and (b)). On cross-examination, Ankney testified that while
production on Linder’s 30-day evaluation was noted to be ac-
ceptable, on Linder’s 60-day evaluation Ankney noted that
Linder’s production was good, which, according to Ankney’s
testimony, meant that Linder’s production had improved in
his second 30 days; and that this conclusion was reached and
memorialized by him after he had pulled Linder’s production
records which he indicated show that Linder’s production
had dropped.
On October 28, 1991, Jay Sargent, who is the quality con-
trol supervisor, sent the following memorandum to Ankney:
On Friday 10/25/91 Steve Linder backed into a skid of
Navistar doors in front of Q C office. Randy told him
he would have to re-stack the skid. Steve said it was
not his job and drove away. Randy re-stacked skid and
found one damaged door that needed flange repaired.
Ankney forwarded a copy of this memorandum to Miller.
Hess testified that he witnessed the occurrence described
in the next preceding paragraph; that Linder was not looking
where he was going; that Linder knocked over doors loaded
on a pallet; that when Linder was asked to help pick the
doors up to check for damage Linder replied ‘‘it’s not my
god-dammed fucking job’’ and he left the scene without
helping; and that he and Walker restacked the doors except
for one which was damaged in that the flange was bent out
of shape. Hess testified that the door which was damaged
was on the bottom of the stack; that the doors are made of
aluminum; and that sometimes they are dropped and dam-
aged.
About the beginning of November 1991 Ankney told
Shepherd that he realized that they were on opposite sides
of the fence but he appreciated the way Shepherd was run-
ning his department. Also about 2 weeks before the election,
according to the testimony of Shepherd, Chrismen asked him
what he did not like about what the Company was doing and
what couldn’t the company ‘‘take care of.’’17 When Shep-
herd and Gaier bought donuts and left them in the breakroom
for the employees, Miller photographed them and asked him,
Shepherd, if he brought the donuts into the plant. At about
this time, according to the testimony of Shepherd, Ankney,
and Chrismen approached him and Ankney told him to tell
his people to quit putting stickers on the machines. Shepherd
testified that when he asked Ankney why he was being put
in the spot, Ankney said that the people looked up to him
and they would listen to him.
Employee Richard Fullerton testified that sometime in No-
vember 1991 prior to the election he pulled a UAW sticker
off the door to the restroom; that McMillan said something
about it to him; that employee Dave Pritchard told him that
he should not be ‘‘messing with Union property or Union
material’’ and if the Union got in it might have some bearing
on whether he, Fullerton, was offered a permanent position;
that employee Jeff Gates told him that he should check his
truck at night before he went home since it might blow up;
that Gates called him a ‘‘cock sucker’’; that he told his fore-
man, Chrismen, and Fullerton subsequently spoke to Miller
and Ankney; and that he was subsequently called ‘‘Rich the
Snitch’’ by Gates and a couple of other temporaries. On
cross-examination, Fullerton testified that he did not vote in
the election because he was a temporary; that the word
‘‘cock sucker’’ is a commonly used term on the plant floor;
and that none of aforementioned employees, when they
spoke to him in the plant, represented to him that they were
speaking on behalf of the Union.
On November 5, 1991, Ankney noticed parts on a skid
which were not big enough to protect the parts. He asked
Linder about it and Linder allegedly said that he realized that
the skid he was using was too small but he just said, ‘‘Fuck
it,’’ and went ahead and finished loading the skid. Ankney
had Linder restack the parts on a skid large enough to protect
them. Ankney then drafted an information fact report regard-
ing this incident (R. Exh. 8). A copy of this memorandum
was given to Miller. Miller testified that on November 5,
1991, Ankney came to him, gave him a copy of Respond-
ent’s Exhibit 8, and said that he wanted to discharge Linder
because of Linder’s attitude when Ankney told him about the
parts on the undersized pallet; that he contacted John Smail,
who is Respondent’s vice president of human resources in
South Bend, Indiana, and Smail ‘‘leaned towards’’ discharg-
ing Linder;18 that he was going to discharge Linder the Fri-
day before the election but something else came up; that he
could not recall what this other matter involved; that since
the election was held the following week he did not want to
take any action on this matter; that after the election, Hess
told him that Linder was the one who threatened to burn
Shaw’s house; that Linder was discharged after the election;
and that he did not know on November 5, 1991, of Linder’s
union activity. On cross-examination, Miller testified that the
involved information fact report (R. Exh. 8) has four boxes
at the top, namely, general information, general counseling,
verbal warning documentation, and written warning docu-
mentation; that this list is in order of the seriousness of the
matter; that the general counseling box is checked off on
Linder’s November 5, 1991 form; that, nonetheless, Ankney
regarded this as serious enough to discharge Linder; and that
Linder’s signature does not appear on the form on the line
designated ‘‘Employee’s Signature.’’
About November 7, 1991, according to the testimony of
Shepherd, Ankney approached him in his department and
asked him why he felt like he did about the Union and was
it due to something that management had done, namely, not
giving Shepherd a supervisory position which had opened on
804 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
19 According to the testimony of Murphy, she had conversations
with Kellis about the Union during the campaign, telling him why
a Union was needed Wells. Kellis did not deny this.
20 Wells employee Beverly Phillis corroborated Murphy about
what was said at this meeting but Phillis was not sure which of the
company representatives made the statement. On cross-examination,
Murphy and Phillis testified that there was a raise after the union
campaign and the employees were offered a 401(k) plan. Murphy
also testified that Kellis, on almost a daily basis, would tell her
about his experiences with unions and why Wells’ employees did
not need a union.
21 The sticker was described as being about 3 inches in diameter.
22 The G.C. Exh. 4 is Miller’s memorandum to file dated Novem-
ber 15, 1991, which memorandum indicates that Linder, in addition
to the reasons stated in the discharge report, was also terminated be-
cause of threats made regarding other employees. The memorandum
goes on to indicate that Linder was not confronted with this informa-
tion because of fear by the employee, Hess, reporting the threat. Mil-
ler testified that Hess indicated that two other employees were with
him when he overheard one of the threats being made. The file also
contains the following memorandum, G.C. Exh. 5, which is marked
‘‘Received . . . on November 15, 1991’’:
I did not let you know who Mike had made his threatening
statements about. Since I had with Steve Linder I thought I
should with Mike. They were against Obetta Sullenburger and
Gene Daly.
Randy L. Hess
P.S. John, if there is ever a walk out, you can count on me to
be here working at my job.
Hess testified that he decided to tell management who made the
aforementioned threats before the results of the election were known
but he did not do it until after the results were known; and that he
did not tell anyone in management before the election that he had
decided to tell who made the threats because he wanted to see what
was going to happen with the voting. Hess also testified that before
he revealed the names, Miller or Smail asked for the names a total
of three or four times from the time he revealed the threats. Miller
testified that he never asked Hess what he would do if there was
a walkout; and that he could not recall if he called Hess into his
office to ask Hess to give him the names of the employees who al-
legedly made the threats.
23 Linder’s 30-day evaluation, which was due September 26, 1991,
but is dated October 24, 1991, has the acceptable or good boxes
checked off for all of the categories except for attendance which is
checked off in the marginal box. G.C. Exh. 6, Linder’s 60-day eval-
uation, is also dated October 24, 1991, G.C. Exh. 7. All of the
the third shift; and that the conversation ended when he said
that he did not want to get into it.
On November 12 or 13, 1991, according to the testimony
of Murphy, she, along with the other third-shift employees
and one temporary employee attended a meeting with Miller,
Smail, Ankney, and Kellis.19 Murphy testified that Miller
told the employees that if the Union won the election, he
would tie the employees up in court for 2 to 3 years with
no raise in benefits and no raises during that time.20 Miller
testified that what he said was that he believed that some un-
fair things had happened during the campaign and he would
go as far as he possibly could in the courts to fight it and
that could take 2 or 3 years; that he also said that if it be-
came a union shop, during negotiations all things like raises
and wages are frozen; that the employees put the two state-
ments together for some reason; and that the normal wage
increases were given after the election.
On November 14, 1991, Miller, according to Shepherd’s
testimony, approached him and asked him if he had been
telling people that he was going to be fired because of his
union activity. Shepherd testified that he told Miller that he
had not been telling people that; and that he told Miller that
he was standing up for something he believed in and he was
going to follow it out. Miller told Shepherd that he had no
intention of firing anyone over the Union. Also, the next day
Miller posted a letter indicating that the Company had no in-
tention of firing Shepherd or anyone else because of their in-
volvement in the Union. Shepherd was a union observer at
the election. Shepherd also testified about a conversation he
had with employee Nancy Likens where he told her that he
understood no matter which way she voted and he hugged
her. On the day of the election, November 14, 1991, Shep-
herd gave employees about 25 union T-shirts, about 25 union
hats, and more than 25 union buttons. As he passed these
items out to the employees, he told them that Miller said that
they could wear them and they would not get in trouble.
Miller testified that on the day of the election about 10
employees wore union T-shirts and that he did not recall see-
ing union T-shirts being worn prior to election day. Miller
sponsored two sample ballots (R. Exhs. 32 and 33) testifying
that he took both of them down on November 14, 1991,
when he found the former, after Koverman told him about
it, with a handdrawn ‘‘X’’ in the ‘‘YES’’ box and a ‘‘Vote
UAW’’ sticker21 on it, and the latter with a UAW ‘‘Vote
Yes’’ sticker on it. After these two sample ballots were taken
down, two or three remained posted. Miller testified that he
threw both union stickers away, he did not see who defaced
the sample ballots, and he did not know who did it.
On the night of the election, according to the testimony of
Monroe, he was wearing a ‘‘Vote-Yes’’ T-shirt when Miller,
Ankney, and Kellis approached him. Monroe testified that
Miller was yelling and he pointed his finger in Monroe’s
face; that Miller said, ‘‘If you harm a hair on Scott Thomp-
son’s head, you’ll be out the door’’; that he told Miller that
he did not know why he, Miller, would think that; that he
told Ankney that he would not do that; that he told Miller
that this was not against him and he was taking it personally;
that Miller said that it was against him and the Company;
that Miller then said that Monroe had better not have threat-
ened Scott; that later that night Ankney and Kellis came to
him and apologized for Miller’s behavior; and that Kellis
later said that before the election management figured out
that the Company was going to lose the election by five
votes. For the most part, Kellis corroborated Monroe. When
asked by counsel for Respondent whether he told Monroe
that Miller was upset because the Respondent had calculated
that it was going to lose the election by five votes, however,
Kellis testified, ‘‘[n]ot before the election, no. I didn’t even
say—I was real careful before the election not even to allude
to how the company felt the election was going to go.’’
Of the 55 employees who voted on November 14, 1991,
between 11 and 11:30 p.m., 30 voted for the Petitioner and
25 voted against the Petitioner.
On November 15, 1991, Respondent discharged Linder.
Miller, when called by counsel for the General Counsel, tes-
tified that the primary reason for discharging Linder was not
the fact that he allegedly threatened to burn another employ-
ee’s house22 but rather Linder, who was a probationary em-
ployee, was discharged for his declining production, his at-
tendance problems,23 and his lack of respect for company
805WELLS ALUMINUM CORP.
checkmarks are in the acceptable or good boxes, except for attend-
ance which has a checkoff in the unacceptable box.
24 Ankney testified that after Miller reviewed Linder’s production
and attendance records with him, and Miller said that he was going
to decide over the weekend whether Linder would be employed by
Wells beyond his probationary period; that Linder told Miller to be
a man and let him know at that time; that, after speaking to Sargent,
Miller told Linder that he was terminated; and that when Linder
asked Miller if his union activity had anything to do with his dis-
charge, Miller denied it. Ankney also testified that a few days before
the election he saw Linder wearing a union T-shirt but Linder’s
union activity had nothing to do with his recommendation that Lin-
der be discharged; that attendance was the main criteria, especially
for a probationary employee; and that he had recommended that
other employees be terminated, namely Shepherd, probationary em-
ployee Fair, and Norm Watts. On Linder’s termination checklist
Ankney wrote ‘‘[p]oor attendance, drop in production rate, and for
showing a lack of proper concern for product he was producing,’’
R. Exh. 11. Ankney testified that on his own initiative on November
5, 1991, he asked Miller to discharge Linder because of his attend-
ance and the drop in his production. Ankney sponsored R. Exhs. 19
through 24 which are summaries of Linder’s production on specified
parts and R. Exhs. 25, 26, and 27, which are photographs of the tow
motors used by Linder and pallets stacked with doorframes, which
frames are stacked 15 high on a pallet and which frames are not se-
cured in any way to the pallet when they are in the area of the qual-
ity control department. Ankney also testified that he does not inform
employees of any production standards with respect to the various
parts that they work on; that the Company does not have any such
production standards; and that he does not tell employees that they
are expected to produce so many parts an hour.
25 On surrebuttal, Miller testified that probationary employee Fair
was terminated for a severe attendance problem. On cross-examina-
tion, Miller conceded that the Information Fact Report on Fair, G.C.
Exh. 25, demonstrates that Fair was given a warning about his at-
tendance problem and given a chance to improve, and it was subse-
quent to the warning that Fair missed work and was terminated. That
Information Fact Report reads, in part, as follows:
[t]his is a warning that his current attendance record is ex-
tremely poor for a new employee & that any occurrence after
this date would be cause to terminate his probation and employ-
ment. [Emphasis in original.]
26 Respondent introduced Linder’s employment application, R.
Exh. 2. Linder conceded that he did not list one of his prior jobs
on the application. This matter was not mentioned during his termi-
nation meeting. Actually Linder was not on the Company’s payroll
at that prior job but rather he was on the payroll of Manpower as
a temporary employee working at the involved Company. Linder
also began working at Wells as a temporary employee on
Manpower’s payroll.
property and company goods in that Linder damaged parts
and improperly loaded parts on an undersized pallet.24
When called by Respondent, Miller testified that he con-
siders the probationary period an especially important time to
be monitoring an employee; that it was his intention to dis-
cuss the situation after he spoke with Linder but when Linder
forced the issue by saying be a man if you are going to fire
me, he decided, after verifying the damaged door incident,
to take action himself, especially since he, Miller, had
learned that day that Linder had threatened to burn Shaw’s
house down; that he was going to terminate Linder even be-
fore he learned that he made the threat; and that the termi-
nation would have been based on Linder’s performance and
his lack of respect for the product. Miller, according to his
testimony, did not say anything to Linder about the alleged
threat because he did not want to reveal Hess. Miller testified
that Linder’s union activity did not have any impact on his
decision to terminate him. While Linder did allegedly say
during his meeting that this is because I wore a union T-shirt
on the day of the election, Miller testified that he said that
that had nothing to do with it.
Regarding his termination, Linder testified that Ankney
took him into Miller’s office; that Miller said that there were
some problems after his, Linder’s, initial evaluations and he
wanted to discuss them; that Miller said that Linder backed
over a pallet, used foul language, and refused to restack the
parts which had fallen; that Miller said that Linder had
stacked parts on the wrong pallet and he refused, using foul
language, to restack them; and that Miller also mentioned
Linder’s attendance and a drop in his production rate. Linder
testified that he had not missed a day after he received his
prior evaluations;25 that he explained to Miller that he
backed over the corner of the pallet but he did not think that
he hurt anything and so he just drove on; that while Miller
said that he damaged one of the doors on the skid he, Linder,
could not understand how this could be done because the
doors are stacked 15 to 30 to a pallet; that if he hit any of
the doors on the pallet, he would have hit more than one;
that he told Miller at this meeting that when Ankney men-
tioned that the pallet was the wrong size, he told Ankney
that he did not have any of the correct sized pallets when
he stacked the involved parts and he asked Ankney to have
the parts taken back to his saw area and he would restack
them; that he told Miller at this meeting that his production
rate dropped because he had a smaller blade on his saw and
he could not cut as many parts; that when Miller brought up
the miscounted parts, he told Miller that he was never shown
any proof that he miscounted any parts; and that when Miller
said that he would decide Monday whether he was going to
keep him, he told Miller that he should decide that day; and
that later that day Miller told him that he was terminated.26
According to Linder’s testimony, he was never asked prior
to his termination whether he made any threats against any
employees. Linder testified that he made no such threats. On
cross-examination, Linder testified that he told Miller at the
first meeting that if he was going to fire him he should be
a man and fire him at that time so he, Linder, would not
have to worry about it during the weekend.
On November 20 Hess gave a second affidavit to Re-
spondent in which he gave the names of the employees who
allegedly made the above-described threats.
On November 21, 1991, Miller discharged Shepherd. Re-
garding the reasons, Miller testified when called by counsel
for the General Counsel that during the union campaign the
leadman on the third shift, Daly, allegedly received a tele-
phone call from an unidentified person who allegedly threat-
ened that if Daly did not quit knocking the Union, he was
going to get his head bashed in; that prior to the election
Hess told him that he overheard Shepherd threaten to bash
an employee’s head in and he, Miller, thought that Hess gave
Daly’s name; that before the election Hess did not give
‘‘names’’ of who made the threat but rather he just indicated
that the threat was made; that after the election Hess gave
him the names of the individuals who made the threats,
namely, Shepherd and Linder; that Hess told him that he also
806 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Smail testified that he did not recall Miller giving Shepherd his
paycheck at this meeting and that he did not believe that this oc-
curred. The General Counsel introduced two of Respondent’s evalua-
tions for Shepherd. Shepherd received an excellent rating in all cat-
egories, G.C. Exhs. 21 and 22, and a memorandum from the former
plant manager, Montgomery, explaining that Shepherd was an out-
standing employee and why he, Montgomery, brought him back to
Wells to fill a lead position. G.C. Exh. 23.
overheard Shepherd threaten to bash Sullenberger’s head in;
and that during the termination meeting, Shepherd said that
he ‘‘did not threaten anyone at work.’’ Ankney testified that
he was present at Shepherd’s termination meeting along with
Miller and Shepherd and that
John [Miller] had told Mike what the information
was that he had about his threatening somebody in the
plant, threatening an employee, and Mike denied mak-
ing any threats. He . . . [sat] in his chair and told John
that he absolutely did not threaten anybody in the plant.
Well, he was extremely upset about it, of course. [Em-
phasis added.]
Ankney further testified that he interpreted what Shepherd
said to be an admission since he said that he did not bother
anyone there on the premises. On Shepherd’s termination
checklist (R. Exh. 12), Miller wrote ‘‘Mike’s being dis-
charged for stated threats involving other employees.’’ And
on cross-examination, Ankney testified that he was not
present when Hess gave the names of the employees who al-
legedly made the aforementioned threats; that he was aware
of the allegations against Shepherd prior to the time he was
discharged; that when Shepherd was called into the office on
the day of his discharge, a decision had already been made
to discharge him; and that prior to that time Shepherd had
never been confronted with the accusations against him. At
another point in his testimony Ankney testified that it is only
fair to confront an employee with accusations made against
him and let him respond.
Regarding his termination, Shepherd testified that at the
end of his shift Ankney told him that Miller wanted to see
him; that he went to Miller’s office with Ankney; that as he
approached the office he saw Miller with a paycheck in his
hand and he, Shepherd, ‘‘knew what was coming’’; that Mil-
ler told him that he, Shepherd, was terminated because he
made threats; that he told Miller that he would never threaten
anybody; that he told Ankney that he had been there as long
as the Company and he would not threaten anybody; that the
management representatives present held their heads down
and could not look him in the face; that he shook their hands
and told them that he would see them in court; that during
this meeting no one told him what he was alleged to have
said which was threatening and no one asked him if he had
said something threatening; that he did not recall ever saying
that he did not threaten anyone in the plant; and that he
never threatened anyone about the union campaign. John
Smail also attended this meeting.27
When called by Respondent, Miller testified, with respect
to the Shepherd discharge, that he, Miller, did not hold his
head down during the termination meeting but rather he
looked straight at Shepherd; that he discharged Shepherd for
threats ‘‘about an employee of Wells’’; that Daly told him
about receiving a telephone call during which some unidenti-
fied caller said ‘‘if you don’t quit knocking the Union, you’ll
get your head bashed in’’; that Hess told him before the elec-
tion about the threats of ‘‘bashing of the heads’’ and the day
after the election Hess told him who made the threats; that
he believed Hess because the threat described by Hess was
almost word for word what Daly told him he heard on the
telephone, he never had a problem with Hess, Hess has a se-
vere speech impediment and Miller could see no reason why
he had anything to gain from reporting what he allegedly
heard, Hess was a concerned employee and several times he
told Miller that he wanted to give him a chance, and he was
not aware of Hess ever lying to him; that he took Shepherd’s
statement that he did not threaten anyone at work to be an
admission; that he did not tell Shepherd that Hess reported
the threats; and that he had not made a final decision to ter-
minate Shepherd before he met with him because he wanted
to hear what Shepherd had to say. Subsequently Miller testi-
fied that normally Shepherd received his paycheck on a Fri-
day; that Shepherd was discharged on a Thursday; that the
paychecks do arrive at the involved facility from South Bend
on Thursday; and that he did not recall if he gave Shepherd
his paycheck at any time during his meeting with him on
November 21.
On about November 28, 1991, according to the testimony
of Murphy, there was a meeting at the union hall and she,
Shepherd, and Monroe were chosen to be bargaining com-
mittee members.
On December 17, 1991, the Union issued $200 checks to
Shepherd and Linder (R. Exhs. 5 and 6), respectively.
On December 18, 1991, Shepherd and Linder gave affida-
vits to the Board.
In January 1992, when Daly was made a supervisor,
Ankney, according to his testimony, spoke to Daly about the
Company’s concern with Daly’s purported drinking problem,
he sought an assurance from Daly that it was not a problem
and he told Daly that such a problem would not be tolerated
at work. Miller also testified that when he made Daly a su-
pervisor, he told him that drinking would not be tolerated
and if it occurred he, Daly, would be gone.
According to the testimony of Kearns, sometime after Jan-
uary 1, 1992, he overheard a conversation of Kellis, Daly,
and Ankney about Monroe and Murphy. Kearns testified that
Ankney told Daly that he should not let Murphy and Mon-
roe, who were union representatives, talk while Murphy was
on the clock. As noted above, Daly had been promoted to
supervisor of the third shift in January 1992. Ankney testi-
fied that he never made any statements with regard to the
fact that Murphy was a shop steward. While Daly testified
herein, he did not deny this.
According to the testimony of Murphy, in late January or
early February 1992, after some of the employees agreed that
if they had a problem with Daly, they would ask the Com-
pany to give him a drug test, she told Ankney that the third-
shift employees were upset about Daly’s drug use. Murphy
testified that Ankney said that he knew that Daly had a
drinking problem but he had no idea about drugs; that
Ankney asked her if she was sure; that he told her that she
should get the people who told her to come forward; and that
the woman who told her did not want to come forward be-
cause she was afraid of losing her job. Phillis testified that
she recalled several discussions with Murphy and other third-
shift employees about Daly’s alleged drug and alcohol use;
807WELLS ALUMINUM CORP.
28 Ankney testified that Murphy never mentioned marijuana at this
meeting.
29 Murphy testified that she did not tell this temporary that he had
little chance of being hired as a permanent employee and that she
may have told this temporary employee that Daley does a lot of
backstabing and that Daly told another employee that he smoked
marijuana at work with another employee but the other employee de-
nied it. Murphy testified that she may have made the latter statement
to temporary employee Ryan Howell. Counsel for Respondent rep-
resented at the hearing here that Abrevaya was subpoenaed but he
did not arrive at the courthouse and that Respondent had not been
able to get in touch with him. A copy of the return receipt of the
subpoena was received here as R. Exh. 16.
30 Ankney testified that at this meeting Murphy mentioned ‘‘dope’’
and marijuana, but she did not mention cocaine and that while she
denied telling Abrevaya that Daly did not like temporaries, she ad-
mitted saying that Daly does a lot of back stabbing.
and that Murphy mentioned that she had told Ankney. Subse-
quently Phillis testified that it was brought up by the employ-
ees that someone’s child had been at Daly’s house and the
child came home and said that they were sniffing powder;
and that the employees discussed Daly’s runny nose.
On January 30, 1992, Miller signed and posted a notice
(G.C. Exh. 20) which indicated, among other things, that the
unfair labor practices filed by the Union dealt principally
with the discharges of Shepherd and Linder and that the
Company has an obligation to insure the safety of everyone
at the facility and cannot tolerate threats to employees.
Ankney testified that in January 1992 Murphy told him
that Daly was using ‘‘coke’’28 on company premises; that he
told Murphy that he was aware that Daly purportedly had a
drinking problem but he had never heard anything about any
drug problem; that Murphy told him that she was going to
speak to the person who supposedly knew that Daly was
using drugs; that the next day Murphy told him that the per-
son would not come forward; and that without proof no ac-
tion could be taken. Ankney testified that Murphy told him
that someone else could tell him that Daly was ‘‘doing co-
caine at the plant’’ and that all of the employees on the shift
were concerned about it. Ankney did not tell Murphy that
she should not discuss this matter with other employees. He
testified that one could conclude, based on what Murphy told
him in January 1992, that Murphy had conversations with
other employees about Daly’s drug use.
In May 1992 Respondent implemented a new employee
handbook (G.C. Exh. 3).
On June 1, 1992, Respondent implemented a new 401(k)
plan and safety bonus program as alleged in paragraph 8(b)
of the above-described complaint. Respondent stipulated that
the involved changes that it made in 1992 were made unilat-
erally without bargaining with the Union.
Over breakfast one morning in late May or early June
1992, Murphy told a temporary employee, Derek Abrevaya,
about the Union, the fact that she had been voted on the bar-
gaining committee, the things that went on in the shop, and
also about the fact that she told Ankney in January 1992
about Daly’s alleged drug use.29 On June 18, 1992, Howell
gave an affidavit to Respondent (R. Exh. 10) in which he in-
dicated that Murphy told him 3 or 4 months before he gave
the affidavit that Daly had smoked marijuana in the plant
with a couple of guys. Howell, who by the time of the hear-
ing here had become a permanent employee with Respond-
ent, testified that during his breakfast with Murphy she made
this statement and she also said that Daly did not like tem-
poraries and Howell had no chance of becoming a permanent
employee at Wells; and that he never went to management
to let them know about this statement. On cross-examination,
Howell testified that nothing that Murphy said that morning
bothered him; that he did not go to management about the
conversation but, rather, management came to him several
months after the conversation; that he and Murphy were dis-
cussing a number of different things relating to work that
morning; and that they were both employees at the plant at
the time.
Daly testified that Abrevaya told him what Murphy said
about Daly not liking temporaries and, therefore, they had no
chance of being hired and about Daly smoking marijuana in
the plant; that he learned that Murphy had spoken to Howell
so he asked Howell about it; that Howell told him that Mur-
phy made the same statements to him; that he told his super-
visor about what Murphy told the two temporary workers;
that there was no truth to Murphy’s statements; and that he
has never used marijuana in his house in front of a child of
a coworker. On cross-examination, Daly testified that Mur-
phy did a very good job at what she did.
On June 23, 1992, Murphy was discharged. Miller testified
that he made the decision to terminate Murphy in consulta-
tion with Smail; that he met with Murphy prior to discharg-
ing her; that they discussed the statements that she allegedly
made to specified temporary employees regarding Daly’s al-
leged drug use and his attitude toward temporary employees;
that Murphy’s supervisor, Ankney, attended this meeting and
he confirmed that Murphy did tell him in January 1992 about
her suspicions about Daly’s use of drugs; that Murphy volun-
teered at this meeting that she did check out one rumor about
Daly taking drugs in the plant with other employees and she
was told by one of the other alleged participants that it was
nonsense; and that Murphy indicated that she had received
reports from other employees concerning Daly’s drug use but
she would not give the names of the other employees to Mil-
ler or to Ankney in January 1992. Ankney testified that at
this meeting Murphy said that it was simply gossip, some-
thing to talk about, and she did not see any harm in it;30 and
that Abrevaya told him and Miller that Murphy took him out
to breakfast and told him that Daly smoked ‘‘dope’’ in the
plant, did not like Manpower help and, therefore, he should
not plan on being hired, and Daly would stab him in the
back. Abrevaya gave Wells an affidavit regarding what Mur-
phy allegedly told him about Daly (R. Exh. 9). Ankney testi-
fied that he discussed this allegation with Daly who denied
smoking marijuana and who offered to take a drug test; and
that he had seen a general information memorandum (G.C.
Exh. 15) in Daly’s personnel file, dated April 10, 1990, in
which the then plant manager wrote, as follows:
Sue Nichols & Connie Murphy indicate that they have
smelled alcohol on your person on at least two
occasions! This session between you and I is to make
sure you understand that coming to work ‘‘impaired’’
drinking or doing drugs during working hours is not
tolerated.
Ankney testified that before the hearing here he had not seen
a memorandum in Daly’s personnel file which is dated 6–
808 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 When, on cross-examination, counsel for the General Counsel
brought up the matter of the disciplining of employee Robert Lyons,
Ankney testified that he did not participate in Lyons’ disciplinary
hearing since he, Ankney, was not part of the management team at
the time. Then when he was shown a memorandum, G.C. Exh. 19,
he conceded that he was production supervisor at the time and he
was present at that disciplinary hearing. Subsequently he testified
that he had no real involvement with this incident. Then he agreed
that while he did not remember, the memorandum does indicate that
he did attend that disciplinary hearing. The memorandum lists him
as a participant. According to the memorandum, which is dated Au-
gust 6, 1986, a male employee admitted to a female employee’s ac-
cusation that he exposed his genital area twice to the female em-
ployee on company property. The memorandum indicates that the
employee was not fired but rather he was put on probation for 180
days with the understanding that he was to receive psychiatric coun-
seling. The memorandum goes on to point out to the male employee
that his conduct is potentially criminal, if prosecuted. Ankney, along
with the former works manager and the involved male employee,
signed the memorandum. Ankney testified that when a problem
arises with an employee, the preferred approach is to point the prob-
lem out to the employee and correct it.
32 In her request for reconsideration filed August 7, 1992, Murphy
indicated that she spoke to the other worker about her supervisor on
her own time and she was not at her place of employment when the
conversation took place. R. Exh. 4. The original determination that
Murphy was discharged for just cause in connection with the work
was received here as R. Exh. 13.
27–88 and indicates ‘‘must be beyond a doubt—sober & not
high’’ (G.C. Exh. 16). Daly’s personnel file also contains a
memorandum (G.C. Exh. 17) which indicates ‘‘Drinking be-
fore work. . . . Beer at lunch time.’’31
When called by Respondent, Miller testified that before he
terminated Murphy, he telephoned Howell and Abrevaya
while Ankney was in his office listening on the speaker
phone; that during his meeting with Murphy she said that
there was another lady who knows it for a fact; that he asked
for the lady’s name indicating that he would deal with her;
that he discharged Murphy for making malicious statements
which is in violation of the handbook; that he told Murphy
that she was to return to work and not disrupt the work
force; and that he did not view Murphy as being a part of
any concerted action or speaking on behalf of others in this
matter. On cross-examination, Miller testified that he consid-
ered Murphy’s statements to be malicious because she did
not have anything to substantiate them; she had no proof.
Regarding her discharge, Murphy testified that she was
called into Miller’s office on June 22, 1992; that Ankney and
Miller were there; that Miller asked her if she made the
statement that Daly was using drugs and she said that she
told Ankney that in January 1992 and Ankney agreed; that
Miller asked her why she was saying it if she had no proof;
that when Miller asked her if she had ever seen Daly use
drugs she replied that she had never seen Daly drinking but
the employees knew that Daly came into work under the in-
fluence of alcohol and it was in his record; that she told Mil-
ler that the employees had decided to let Ankney know in
case there was a problem with Daly being overbearing; that
she asked Miller if this had anything to do with the Union
and Miller got very upset saying that it had nothing to do
with the Union; that Miller asked her if she had made a
statement about Daly smoking marijuana and she said no, in-
dicating that another employee told her that Daly told him
that he, Daly, had smoked ‘‘grass’’ at work; that she told
Miller that the employee who allegedly smoked marijuana at
work with Daly told her that he had never smoked with
Daly; that she told Miller that she believed Daly used drugs;
that Miller asked her about telling temps that Daly does not
hire temps and she told Miller why would she say that since
Daly does not do the hiring; and that Miller asked her not
to discuss the meeting with the other employees on the third
shift because he would rather that they did not know until
he had decided on the punishment. According to Murphy’s
testimony, the following day, June 23, 1992, Miller tele-
phoned her and told her that he had telephoned corporate and
corporate said that she was to be terminated.
By memorandum dated July 7, 1992 (G.C. Exh. 9), Miller
indicated as follows:
Connie Murphy falsely told one of our Manpower
temporary workers that he would not be hired at Wells
because his supervisor did not like to hire temporary
people and that therefore that temporary employee had
little chance of being hired. She also told the temporary
person that the supervisor would do all he could to
‘‘bust him.’’ Connie also told this temporary person,
plus one other temporary, that the same supervisor had
been using drugs in our plant. She made this statement
about drugs without any proof of same upon being
questioned about same. Further, upon being questioned,
Connie Murphy admitted that she had told about the
drugs because it was ‘‘gossip and something to talk
about.’’ She told one of the temporary persons that the
supervisor had used drugs in the plant with a ‘‘couple
of guys.’’ Upon being questioned she said that she
knew the supervisor hadn’t used drugs because she had
asked one of the ‘‘guys’’ who the supervisor had sup-
posedly used drugs with and that ‘‘guy’’ told her that
that was nonsense.
Because of the above Connie Murphy was termi-
nated. She violated published company work rules that
‘‘making or publishing vicious or malicious statements
concerning other associates, supervisors, management,
Wells/Sidney and its products or customers,’’ is a viola-
tion and that ‘‘certain conduct not specifically forbid-
den by any published policy or rule, but which is clear-
ly harmful to the orderly conduct of business, to the
safety of other associates, equipment, or product, or is
against generally accepted standards of conduct, will re-
sult in disciplinary action, including possible termi-
nation.’’
John W. Miller
Operations Manager
The Ohio Bureau of Employment Services issued an ad-
ministrator’s reconsideration decision on September 2, 1992,
which affirmed the original determination that Murphy was
discharged by Wells for just cause in connection with the
work. (R. Exh. 3.)32
Analysis
Paragraph 5(a) of the second consolidated complaint (com-
plaint) alleges that from June 4 through October 8, 1991, Re-
spondent maintained an unlawful no-solicitation, no-distribu-
809WELLS ALUMINUM CORP.
33 The rule in question reads as follows:
Vending, soliciting, distributing or collecting contributions
during work time or on Naarco/Disney premises without author-
ization from management [is prohibited].
No solicitations or collections of any kind on company prem-
ises will be made without prior approval. All solicitations will
be supervised by Naarco/Sidney.
tion rule. On brief, the General Counsel points out that Re-
spondent admits that it maintained the unlawful rule during
the period involved.33 Respondent contends, on brief, that it
did not act unlawfully in that no employees were disciplined
pursuant to the rule in question and the Company retracted
the rule on October 8, 1991, and posted a notice to all em-
ployees of this change; and that since Wells posted the notice
of retraction on its own initiative, more than a month before
the election and before any change was filed, paragraph 5(a)
of the complaint should be dismissed. While the notice Re-
spondent posted on October 8, 1991, indicates that ‘‘[t]hese
rules override and takes the place of any other published
rules including those contained in the handbook,’’ the notice
does not include, nor were the employees assured that in the
future Wells would not interfere with the exercise of their
Section 7 rights, Passavant Memorial Area Hospital, 237
NLRB 138 (1978). Respondent did not admit any wrong-
doing. Rather it indicated in the ‘‘retraction’’ that the new
rules were ‘‘[t]o clarify any confusion on this subject.’’ Ad-
ditionally, Respondent here engaged, as noted below, in a
number of other unlawful acts. In these circumstances, I do
not believe that it would be appropriate to find that there is
no need for a separate remedy for the maintenance of the
above-described unlawful rule.
Paragraphs 5(b)(i) and (ii) of the complaint allege that Re-
spondent disparately applied its bulletin board policy to pro-
hibit the posting of union literature and it unlawfully re-
moved union literature from the employee bulletin board in
the breakroom. The General Counsel, on brief, contends that
Respondent’s witnesses admitted removing union literature
from the bulletin board; that Miller engaged in this conduct
as late as November 6, 1991; that Respondent admits that
prior to the union campaign the policy requiring permission
to post notices on the bulletin board was not enforced; that
Respondent admits that the removal of union literature was,
at least in part, in retaliation for the defacement of antiunion
literature posted by Respondent; and that the disparate en-
forcement of a dormant policy, especially by a supervisor in
front of employees, is inherently coercive and interferes with
the employees’ exercise of their Section 7 rights. Respond-
ent, on brief, argues that Miller had removed an unauthorized
notice concerning a raffle; that Koverman removed unauthor-
ized notices from the bulletin board; that Chrismen testified
that the Company’s preexisting policy had been to remove
any unauthorized notices found on the bulletin board; that an
employer is not required to allow its employees access to its
bulletin board; that a rule which requires management au-
thorization for notices to be posted on bulletin boards does
not violate the Act; that no evidence was presented that no-
tices of social events posted prior to the union organizing
drive had not been approved by management or that manage-
ment knew of these notices; that there was no evidence that
Respondent’s policy was in effect when Monroe posted the
Cowboy Bob’s menu without permission or that Respondent
was aware of the posting; and that the removal of union no-
tices during the campaign was consistent with Respondent’s
preexisting policy and practice. With respect to Respondent’s
contentions on brief, it is noted that Miller testified that he
removed the material dealing with a raffle from the bulletin
board because it involved gambling; that on the very next
page of the transcript Miller testified that he could not say
for sure that before employees posted something on the bul-
letin board they came to management and asked; that
Koverman, who was responsible for policing the open bul-
letin board, testified that she had no way of knowing whether
or not an employee posted something on the bulletin board
without obtaining management’s approval; that apparently
Koverman’s main concern in removing material, other than
union literature, from the bulletin board was whether it was
outdated; and that Chrismen’s understanding of the rule was
as follows: ‘‘we didn’t allow, not only union activity, but
just any sort of personal things to be posted on the bulletin
board.’’ Respondent may have had a policy regarding the
posting of material on the bulletin before the union cam-
paign. But even if it did, the enforcement of that policy was,
at best, lax. This changed, however, with the commencement
of the organizing drive. Koverman, who previously removed
outdated and, therefore, irrelevant material, now, pursuant to
instructions, was removing relevant union literature. The
General Counsel correctly argues that this was disparate en-
forcement of a dormant policy in order to chill employees’
union activities and in order to retaliate for the defacement
of antiunion literature posted by Respondent. Respondent
violated the Act as alleged in these paragraphs.
Paragraph 5(c) of the involved complaint alleges that on
or about November 12, 1991, Respondent threatened employ-
ees that their wages and benefits would be frozen if the em-
ployees selected the Union as their bargaining representative.
The General Counsel, on brief, contends that Miller admits
telling employees shortly before the election that (1) if the
Union won Respondent would fight it and the litigation
could take 2 or 3 years, and (2) typically during negotiations
all things are frozen and that Murphy and Phillis, who is a
current employee and was not a union adherent, testified that
they were told there would be no raises in wages or benefits
for the 2- or 3-year period that Respondent would keep
things tied up in court. Respondent, on brief, argues that Mil-
ler’s alleged statements that he intended to exercise the right
to file objections based on the Union’s objectionable conduct
did not constitute a threat of force or reprisal or promise of
benefits; and that Phillis confirmed Miller’s testimony that
Miller stated that on the employees’ selection of the Union,
wage rates, and pay raises were negotiable and changes
would occur only in the course of bargaining. Phillis testified
as follows on this point:
Q. You don’t recall the statement being that the
company would file objections and would challenge the
union’s election victory in court and that would take
two to three years?
A. They said they would hold it up in court any way
they could and that we wouldn’t be able to get pay
raises.
Q. You weren’t told that the issue of pay raises—
the issue of not receiving pay raises would occur during
the course of bargaining and the company couldn’t
make changes?
810 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. We were told that everything was negotiable.
Q. In the course of bargaining?
A. Yes.
Q. Have employees received pay raises since the
election?
A. One. That would be the normal one we get.
Q. And when was that?
A. The end of March.
Q. Have there been changes in benefits?
A. Not a lot. I mean, you’ve got your normal insur-
ance and they did put out a non-union 401(k) that you
could get.
Phillis and Murphy are credited. The fact that Respondent
did not carry out the threat does not mean that the threat was
not made. Miller’s explanation that the employees put the
two statements together for some reason is nothing more than
a reluctant admission that the opposite was not true, namely,
that there was no way that the employees could have under-
stood him to be making a threat. Respondent violated the Act
as alleged in this paragraph.
Paragraph 5(d) of the involved complaint alleges that in
late October or early November 1991 Respondent, by
Chrismen, impliedly promised its employees increased bene-
fits and improved terms and conditions of employment if
they refrained from selecting the Union as their bargaining
representative. And paragraphs 5(e) and (f) of the involved
complaint collectively allege that on or about late October or
early November 1991, Respondent, by Ankney, gave the im-
pression, that an employee’s union activities were under sur-
veillance by Respondent and it coercively interrogated an
employee concerning his union sympathies. The General
Counsel, on brief, contends that these allegations are sup-
ported by the credible testimony of Shepherd; that Rossmore
House, 269 NLRB 1176 (1984), does not apply because
there was no credible evidence that Shepherd was ‘‘open’’
in his support for the Union with management; and that ac-
cordingly, Ankney’s and Chrismen’s conversations with
Shepherd, in which they implied that his union activities
were under surveillance, questioned him about the reasons
for his union support, and suggested that Respondent could
remedy whatever was causing employees to support the
Union were violative of Section 8(a)(1) of the Act. Respond-
ent, on brief, argues that, as evidenced by his conversations
with Ankney, Shepherd had voluntarily made his support for
the Union known to Respondent; that Chrismen’s question to
Shepherd, viz, what he did not like about what the Company
was doing and what couldn’t the Company take care of, pre-
supposes the Company’s knowledge of Shepherd’s support
for the Union; that according to Monroe’s testimony, Kellis,
in late September 1991, told Monroe that he knew that Shep-
herd was an organizer from the ‘‘get-go’’; that Miller testi-
fied that Shepherd approached him soon after the union cam-
paign was underway and stated that the organizing effort was
‘‘nothing personal’’; that Shepherd was active on behalf of
the Union and had distributed union T-shirts, literature, and
authorization cards, conducted meetings, and served as an
election observer; that the involved conversations occurred
with supervisors, vis-a-vis the owner of the Company, and
they occurred in work areas and not in locations that have
a tendency to coerce; and that the alleged statements did not
violate the Act because Shepherd was a known union sup-
porter and because the alleged statements contain no threat
of reprisal or force a promise of benefit. Even if one was to
credit Miller that Shepherd told him in October 1991 that the
organizing was nothing personal toward him, Miller, in view
of Miller’s subsequent testimony that he concluded that
Shepherd was probably prounion, this alone would not mean
that Shepherd was an open and active union supporter. Re-
garding Respondent’s assertion that Shepherd served as an
election observer and distributed union T-shirts and literature,
it was not shown that Shepherd did these things before his
involved conversation with Ankney and Chrismen. And dis-
tributing authorization cards to employees and conducting
meetings outside the plant would not appear to be a suffi-
cient basis for concluding that Shepherd was an open union
supporter at the time of the involved conversations. More-
over, contrary to the assertions of Respondent on brief, the
statements made by Ankney do not demonstrate that Shep-
herd had voluntarily made his support for the Union known
to Respondent. Ankney told Shepherd that he, Ankney, real-
ized that they were on opposite sides of the fence. It was not
demonstrated that Shepherd was an open union supporter at
that time. Consequently, Ankney conveyed the impression
that Shepherd’s union activities were under surveillance.
Ankney’s asking Shepherd why he felt the way he did about
the Union and was it due to something management did was
coercive interrogation about his union sympathies which vio-
lated the Act because it has not been shown that Shepherd
was an open union supporter at that time. And finally,
Chrismen’s question to Shepherd, namely, what did he not
like about what the Company was doing and what couldn’t
the Company take care of, was, as alleged, in effect an im-
plied promise that Respondent could improve the terms and
conditions of employment if the Union was not selected as
the employees’ bargaining representative. Respondent vio-
lated the Act as alleged in paragraphs 5(d), (e), and (f) of
the involved complaint.
Paragraphs 6(b) and (e) of the involved complaint allege
that Respondent unlawfully discharged Linder. On brief, the
General Counsel contends that Respondent knew of Linder’s
support of the Union before he was discharged in that Linder
mentioned the Union to Miller in a conversation early in the
campaign and Ankney testified that he became aware that
Linder was a union supporter when he wore a union T-shirt
just before the election; that the timing of the discharge the
day after the election strongly suggests a connection; that Re-
spondent’s proffered reasons for the discharge are so clearly
pretextual; that while Ankney testified that he recommended
that Linder be discharged on November 5, 1991, because of
his attendance and his drop in production, Linder had not
missed work since his 60-day evaluation was given and
Ankney did not, after the 60-day evaluation, have any indica-
tion that Linder’s production rate was unacceptable; that the
production records introduced here demonstrate that Linder’s
production improved substantially during the course of his
probationary period; that it is difficult to understand why
Miller, who had already decided before the election to dis-
charge Linder for production and attendance problems, need-
ed a weekend to think about this discharge after learning
from Hess that Linder allegedly threatened to burn Shaw’s
house; and that Miller was visibly upset and volatile on the
day of the election and the following day he picked out an
easy target, a probationary employee who was noticed wear-
811WELLS ALUMINUM CORP.
34 As pointed out by Administrative Law Judge Learned Hand in
NLRB v. Universal Camera Corp., 179 F.2d 749, 754 (2d Cir. 1950),
‘‘[i]t is no reason for refusing to accept everything that a witness
says, because you do not believe all of it; nothing is more common
in all kinds of judicial decisions than to believe some and not all.’’
35 It is noted that there is an apparent conflict in the testimony and
affidavits of Hess as to when the first alleged threat occurred.
36 There is no evidence that anyone ever filed a police report re-
garding any of these alleged ‘‘serious’’ threats.
ing a T-shirt just before the election. Respondent, on brief,
contends that probationary employee Linder was discharged
for poor performance, poor attendance, a poor attitude, and
his conduct; that the evidence does not support a finding that
the General Counsel has made a prima facie case of discrimi-
nation; that Linder’s activities on behalf of the Union were
minor; that even assuming arguendo that the General Coun-
sel has met the burden of proving its prima facie case, the
evidence clearly shows that Linder would have been dis-
charged even in the absence of any union activities; that as
a probationary employee, Linder could have been discharged
for any one of his enumerated instances of misconduct and
poor performance; and that Linder was warned at his 60-day
evaluation that his continued employment remained uncertain
and immediately following his evaluation, he damaged com-
pany products with a tow motor and improperly stacked parts
on a skid, causing those parts to be damaged.’’ (Emphasis
added.) See Respondent’s brief at 31. Linder signed a union
authorization card, told Miller in late October 1991 that the
employees probably wanted a Union because nothing was
done right by Respondent, wore a Union ‘‘Vote Yes’’ button
to work and wore a union hat and T-shirt to work before he
was discharged. Miller, however, testified that on November
5, 1991, he did not know of Linder’s union activity. But Lin-
der was discharged on November 15, 1991. Miller testified
that actually the decision to terminate Linder was made on
or about November 5, 1991. But for some reason that he
could not remember Miller, according to his testimony, did
not terminate Linder at that time, notwithstanding the fact
that allegedly Ankney and Small had also concluded at that
time that Linder should be terminated. Ankney conceded that
a few days before the election he saw Linder wearing a
union T-shirt. But, according to Ankney’s testimony he rec-
ommended Linder’s termination on November 5, 1991, be-
cause of Linder’s attendance and the drop in his production.
No one disputes Linder’s testimony that he did not have any
attendance occurrences after his evaluations in October 1991.
And regarding production, Ankney testified that the Re-
spondent does not have production standards and he does not
give production standards to employees. Additionally, it was
not shown that Ankney reviewed any production data in ad-
dition to that which he reviewed at the time of Linder’s eval-
uations. In my opinion, Ankney was less than candid regard-
ing the role he played in Lyons’ discipline. And while
Ankney testified that a decision had already been made to
discharge Shepherd when he was called into the office on the
day of his discharge, Miller testified that he had not made
a final decision to terminate Shepherd before he met with
him because he wanted to hear what Shepherd had to say.
Miller’s assertion was belied by the fact that he had Shep-
herd’s paycheck in hand at the beginning of this meeting.
Both Miller and Smail realized this when the former testified
that he did not recall if he gave Shepherd his paycheck at
any time during the discharge meeting and the latter testified
that he did not recall Miller giving Shepherd a paycheck at
the discharge meeting, he did not believe that Miller gave
Shepherd a paycheck at this meeting and he could not recall
anything about a paycheck. I cannot credit the testimony of
these three individuals that it was decided on or about No-
vember 5, 1991, to terminate Linder. If such a decision had
been made at that time it would have been carried out at that
time and not put off for some reason so insignificant that
Miller cannot now remember what it was. If such a decision
had been reached on or about November 5, 1991, there
would have been no need, as Ankney testified, for Miller to
tell Linder on November 15, 1991, that he, Miller, was going
to decide over the weekend whether Linder would be em-
ployed beyond his probationary period.34 Accordingly, at the
time a decision was made to discharge Linder, he had en-
gaged in union activity and Respondent admittedly was
aware of at least some of Linder’s union activity.
On November 14, 1991, Linder wore a union T-shirt.
Monroe also wore a union T-shirt on November 14, 1991.
That evening Miller yelled at Monroe and pointed his finger
in Monroe’s face apparently accusing Monroe of threatening
employee Scott Thompson. Miller did not deny this conduct.
No evidence was introduced here that anyone, including
Monroe, threatened Thompson or even that there was an ac-
cusation that anyone threatened Thompson. If there was no
threat, why did Miller raise this issue? Was the issue raised
because Monroe was wearing a union T-shirt? Was Miller
using a bogus charge of a threat in an attempt to intimidate
an employee who obviously supported the Union. Was Miller
tipping his hand? Was he telling Monroe this is how easy
it is to get you out? Monroe knew he did not threaten
Thompson. And yet Miller was making this serious accusa-
tion. Monroe’s testimony that Kellis apologized later that
evening for Miller’s behavior is credited. Also, Monroe is
credited with respect to Kellis’ explanation for Miller’s con-
duct, namely, that management had figured out that it was
going to lose the election by five votes.
Only Hess testified that Linder and Shepherd made the
aforementioned threats; his testimony is not corroborated. On
the other hand, two employees testified that there were no
such threats, namely, Linder and Shepherd, and two other
employees, Katterhenry and Lovett, testified that contrary to
Hess’ adamant assertions they did not witness Linder’s al-
leged threat. Regarding Katterhenry and Lovett, Miller did
not speak to them before firing Linder to find out if they cor-
roborated Hess. Obviously this decision could not have been
based on the union sympathies of Katterhenry and Lovett for
he, Miller, did not even ask Hess for their names before he
fired Linder. And any argument that it was done to keep
anyone from finding out that Hess informed must be viewed
by terms of the inevitability that in the circumstances of the
situation at hand this would eventually be known. Hess wait-
ed until after the involved election before providing any of
the specifics regarding the alleged threats. Assertedly he did
not provide the specifics before that time because he feared
for his own safety and the safety of his family. It is not clear
how his situation changed in the approximately 45-day pe-
riod involved after he allegedly heard the first threat.35 I do
not credit Hess’ testimony about the alleged threats assert-
edly made by Linder and Shepherd.36
812 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
37 As indicated in fn. 5, supra, Miller testified that he took the or-
ganizing personally in that he did not need a third party to treat peo-
ple fairly and be preferred to work in a shop that did not have a
union.
38 See fn. 34, supra.
39 As noted above, Respondent opposed the Union and as noted
here, Respondent engaged in unlawful conduct in violation of the
Act both before and after the election.
40 Respondent, on brief, argues that pursuant to the Board’s deci-
sion in John Cuneo, Inc., 298 NLRB 856, 857 (1990), Linder’s
backpay should be terminated as of the date Respondent discovered
that Linder misrepresented his employment history on his employ-
ment application which he submitted to Respondent. Respondent did
not present evidence that it would not have hired Shepherd on a per-
manent status, if at all, but for its reliance on Shepherd’s alleged
misrepresentation, which was discovered after his unlawful dis-
charge. In John Cuneo, Inc., supra, the involved employee stated on
the application that he was self-employed rather than laid off from
another company and it was found therein that Respondent had a
policy of not hiring applicants who misstate their employment back-
ground. The administrative law judge in John Cuneo, supra, found
that the employee willfully, deliberately, and intentionally misstated
his employment history. Obviously if an applicant takes positive
measures to avoid informing a prospective employer that he is on
layoff and may be recalled, a conclusion that the applicant willfully,
deliberately, and intentionally made a misstatement is warranted.
That is not the situation here, however, in that at most it was dem-
onstrated that Linder did not list Western Ohio Packaging where he
worked as a Manpower (temporary) employee. Respondent did not
develop the record as to whether the omission was due to negligence
or a misunderstanding or was intentional on Linder’s part. Con-
sequently, I cannot find that the omission was willful, deliberate, and
intentional. In my opinion, Linder’s backpay should not be limited.
For whatever reason, Miller took the anticipated results of
the election personally.37 He went after Monroe, who was
wearing a union T-shirt, verbally on the evening of the elec-
tion. The next day he went after another employee who was
also wearing a union T-shirt on the day of the election—Lin-
der. Linder was more vulnerable because he was a 90-day
probationary employee, who was hired August 26, 1991, and
because he has an attitude.
Why the overkill? Why does Respondent argue on brief
that the parts were damaged which Linder originally stacked
on a pallet which was not large enough to protect the parts?
Nothing in the record supports this contention. If Miller actu-
ally had reliable information that Linder threatened another
employee and if it had already been decided on or about No-
vember 5 to discharge Linder, why, as pointed out by the
General Counsel, did Miller need the weekend to reach a de-
cision which supposedly was made some time before Re-
spondent was made aware of the alleged Linder threat? Ac-
cording to Ankney, Miller said to Linder that he was going
to decide over the weekend whether Linder would be em-
ployed beyond his probationary period.38 If it had already
been decided that Linder was going to be terminated, why
would Miller make this statement?
Under Wright Line, 251 NLRB 1083 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), approved NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), the General Coun-
sel has made a prima facie showing sufficient to support an
inference that protected conduct was a motivating factor in
Respondent’s decision in that the General Counsel has dem-
onstrated that Linder engaged in union activity, Respondent
knew, and there was union animus on the part of Respond-
ent.39 Has Respondent demonstrated that the same action
would have taken place even in the absence of Linder’s
union activity? In my opinion it has not. What was the trig-
gering event? It was not the end of Linder’s probationary pe-
riod yet. The alleged damaged door flange incident and his
utilizing the undersized pallet had occurred in late October
1991 and November 5, 1991, respectively. It appears that
Linder did not have any absences since his 60-day evalua-
tion. The production data relied on at that time was the same
production data reviewed for Linder’s October 24, 1991 eval-
uations. Miller was not really relying on the threat Linder al-
legedly made. As contended by the General Counsel on
brief, the timing must be considered. Linder was not dis-
charged the day after his 30- and 60-day evaluations. Linder
was not discharged the day after he allegedly damaged a
door. Linder was not discharged the day after he utilized an
undersized pallet. Linder was not discharged at the end of his
probationary period. Linder was discharged the day after he
wore a union T-shirt. Linder was discharged the day after
Miller verbally attacked Monroe apparently because he was
wearing a union T-shirt. Linder was discharged the day after
Kellis explained to Monroe that Miller was upset because he
realized that Respondent was going to lose the election by
five votes. Linder was discharged the day after Respondent
did lose the election by five votes. In my opinion, but for
Linder’s union activity he would not have been discharged
on November 15, 1991. In discharging Linder for his union
activity, Respondent violated the Act as alleged.40
Paragraphs 6(c) and (e) of the involved complaint allege
that Respondent unlawfully discharged Shepherd. The Gen-
eral Counsel, on brief, contends that the explanations offered
by Miller for crediting Hess without even questioning Shep-
herd are either patently false or equally applicable as a rea-
son to credit Shepherd; that Shepherd was an outstanding
employee; that Miller’s assertion that Hess had nothing to
gain by coming forward against Shepherd is belied by his
further assertion that Hess had volunteered to him several
times that he was opposed to union representation; that Hess
believed he had much to gain with Respondent by helping
it to succeed in its efforts to defeat the Union; that Hess even
made the connection explicit by assuring Miller as a post-
script to his note ‘‘fingering’’ Shepherd and Linder, that
‘‘[i]f there is ever a walkout, you can count on me to be here
working at my job’’; that while Ankney testified that the de-
cision to discharge Shepherd had already been made before
Shepherd was summoned to the office, Miller testified that
he had not made the decision prior to this meeting; and that
Miller’s and Smail’s lack of recall of Miller’s giving Shep-
herd his paycheck at the meeting was nothing more than
them ‘‘backpedaling furiously, attempting to portray their
summary dismissal of Shepherd without opportunity to re-
spond as a due process hearing, denying the presence of the
telltale paycheck to maintain the twisted version of events.’’
The General Counsel’s brief at 16. Respondent, on brief, ar-
gues that Miller decided to terminate Shepherd unless he
could credibly explain or deny the alleged threats; that when
he met with Miller and Ankney on November 21, 1991,
Shepherd refused to fully deny that he had threatened other
employees but instead allegedly stated that he did not threat-
en anyone in the plant; that pursuant to Chicago Metallic
Corp., 273 NLRB 1677 (1985), the General Counsel has the
813WELLS ALUMINUM CORP.
41 While Respondent on brief and Daly in his testimony spoke to
the seriousness of the alleged threats, as noted no evidence was in-
troduced here demonstrating that a police report was filed.
42 See fn. 34, supra. 43 See fn. 34, supra.
burden of going forward with evidence that Shepherd (and
Linder) did not, in fact, engage in the misconduct alleged;
that the General Counsel failed to establish a prima facie
case in that it failed to prove that the threats made by Shep-
herd (and Linder) did not in fact occur; that Hess had no rea-
son to come forward other than an interest in protecting his
coworkers from harm; that the Company’s honest belief,
formed after a thorough investigation, that Shepherd (and
Linder) made these threats has been established; that since
the General Counsel had not affirmatively shown that the
threats of Shepherd (and Linder) were not made, there is no
occasion to apply the Wright Line analysis; and that even as-
suming, arguendo, that the General Counsel has proven a
prima facie case, Shepherd (and Linder) would have been
discharged even in the absence of any protected activity in
light of the ‘‘serious nature of the threats and the fact that
they were made to female as well as male employees.’’ (R.
Br. 38.) (Emphasis added.) While Respondent took the posi-
tion that it had reasons other than the alleged threat to dis-
charge Linder, with Shepherd the alleged threats assertedly
were the only reason for the discharge. Unlike the two cases
cited by Respondent on brief, Classe Ribbon Co., 227 NLRB
406 (1976), and Chicago Metallic Corp., supra, here the em-
ployees who allegedly were the object of the threats, except
Daly, did not report them to management or testify about
them at the trial here. None of the employees, except Daly,
who allegedly were the object of the alleged threats actually
heard the threat. And Daly did not hear the alleged threat
that Hess assertedly overheard Shepherd make against Daly.
The only threat that Daly allegedly heard was assertedly
made over the telephone by someone who Daly testified he
could not identify. Some guidance can be gleaned from the
two aforementioned cases cited by Respondent in its brief.
Both cite Fred Stark, 213 NLRB 209 (1974), for the propo-
sition that ‘‘if there was fabrication, it would seem more
probable that it was one, rather than the four, who was
lying.’’ As noted above, no witness corroborates Hess. Four
of the witnesses who testified here specifically refute Hess.
Daly does not specifically corroborate Hess. As noted, Daly
was not present when Hess allegedly overheard threats being
made. And, as noted above, Daly testified that he could not
identify the caller who allegedly threatened him. As indicated
above, I do not credit Hess’ testimony. Daly’s testimony
should not cause one to treat Hess’ testimony any differently
to the extent it refers to Shepherd.41 Respondent argues that
it had an honest belief formed after a thorough investigation
that Shepherd made the alleged threats. How thorough was
the Respondent’s investigation? Did Respondent’s manage-
ment maintain a open mind until after it interviewed Shep-
herd about the alleged threats? Ankney testified that the deci-
sion had been made to discharge Shepherd before he was
interviewed.42 Perhaps this is why Smail came from South
Bend and sat in on the meeting. Shepherd corroborates
Ankney in that Shepherd testified that before the meeting
even began he saw his paycheck in Miller’s hand and he
knew at that point in time that he was going to be discharged
or in his words ‘‘what was coming.’’ As noted above, Shep-
herd is credited on this point. Miller’s and Smail’s testimony
regarding Shepherd’s paycheck, as contended by the General
Counsel on brief, was nothing more than them ‘‘backpedal-
ing furiously, attempting to portray their summary dismissal
of Shepherd without the opportunity to respond as a due
process hearing, denying the presence of the telltale pay-
check to maintain this twisted version of events.’’ Even the
allegation that Shepherd said that he did not threaten anyone
at work must be viewed in the light of Ankney’s testimony
that during the discharge meeting Miller told Shepherd that
he had information about Shepherd threatening somebody
‘‘in the plant.’’43 Perhaps it could be expected that the natu-
ral response to such an accusation would be no I did not
threaten anyone ‘‘in the plant’’ or at work. Shepherd’s testi-
mony is credited. During the meeting he said that he would
not threaten anybody. I saw the man. I listened to him speak.
It is my impression that he is a very sincere individual. His
record demonstrates that he is an outstanding worker. Every-
thing about him says that this is not a man who would
threaten another person, especially a woman, behind their
back. Shepherd impressed me as being the type of person
who, if he had a problem with you, would squarely face you
and tell you what the problem was. Contrary to its assertion,
Respondent did not have an honest belief formed after a
thorough investigation.
Under Wright Line, the General Counsel has made a prima
facie showing sufficient to support the inference that pro-
tected conduct was a motivating factor in the Respondent’s
decision. While it was not demonstrated that Shepherd was
an open union supporter when Respondent, as concluded
above, unlawfully interrogated him, by the time of his dis-
charge, his union support was clearly open. As concluded
above, there was a union animus on the part of Respondent.
Respondent has not demonstrated that it had a sufficient
business justification to discharge Shepherd. Respondent has
not demonstrated that it would have discharged Shepherd in
the absence of protected conduct. Respondent violated the
Act as alleged regarding the discharge of Shepherd.
Paragraphs 6(d) and (e) of the involved complaint allege
that Respondent unlawfully discharged Murphy. The General
Counsel, on brief, contends that, as acknowledged by Daly,
Murphy did a good job; that as testified to by Kearns, who
actively opposed the Union, Kellis and Ankney told Daly not
to allow Murphy and Monroe to talk to each other on the
clock because they were the employees’ union representa-
tives; that, therefore, Respondent knew of Murphy’s union
activity; that when Murphy reported Daly’s apparent drug
use to Ankney she was not disciplined or warned that she
was not to discuss Daly’s suspected drug use with other em-
ployees; that Ankney conceded that based on what Murphy
told him in January 1992 it was clear that she had had con-
versations with other employees about Daly’s drug use; that,
therefore, the offense for which Murphy was terminated in
June was the same conduct for which she was not even
warned in January 1992; that Respondent’s contention that
Murphy’s conduct was a dischargeable offense under its rule
against ‘‘making or publishing vicious or malicious state-
ments’’ simply because Murphy could not prove her asser-
tion means that an employee could be punished for making
a truthful assertion if the employee was unable to prove the
814 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
44 Respondent argues, on brief, that Supervisor Kellis’ knowledge
cannot be imputed to Respondent because Ankney’s denial that he
knew anything about Murphy’s union activities is not refuted. Kellis
testified that he worked very close with Miller throughout ‘‘this
whole thing.’’ Kellis and Miller knew of Murphy’s union activity
and, as noted above, neither Ankney nor Daley specifically deny
Kearns’ testimony.
45 None of the cases cited by Respondent for the proposition that
an inference of discriminatory motive is not warranted due to the
timing and the alleged limited extent of Murphy’s union activity are
applicable here. In the first case cited Human Resource Institute, 268
NLRB 790 (1984), as pointed out by Respondent here on brief, the
administrative law judge concluded that ‘‘[s]ix months is too long
a time to look back for a hidden motive in the absence of any other
substantive proof of illegal intent.’’ What Respondent fails to point
out on brief is that Chairman Dotson and Members Hunter and Den-
nis specifically indicated that they did not rely on this language of
the judge. Also, there the union movement had ‘‘died off’’ and all
union activity had ceased sometime before the discharge in question.
Here, the Union won the election, and Wells had filed objections.
Murphy was voted on the bargaining committee and Ankney told
Daley that Murphy was a union representative and she should not
be talking with Monroe while she was on the clock since he was
also a union representative. U.S. v. Barrett, 837 F.2d 1341 (5th Cir.
1988), is distinguishable because there it was concluded that there
was no union animus and the only union activity was signing a card
and attending one union meeting. In Benchmark Industries, 270
NLRB 22 (1984), Chairman Dotson and Members Hunter and Den-
nis, with Member Zimmerman dissenting, affirmed the findings of
Administrative Law Judge Gershuny that an employees’ activities
months before his discharge in signing a union card and demonstrat-
ing his change of allegiance with the wearing of a union button and
an antimanagement sign on his shirt played no role in his discharge.
Murphy’s union activities far exceeded that. In S. S. Kresge Co.,
234 NLRB 402 (1978), there was no showing that the employee in-
volved there engaged in any union activity other than perhaps being
among the majority of employees who cast votes for the Union in
the representation election. Also there was no allegation that Re-
spondent in that proceeding committed any other violation of the Act
at any time reasonably close to the employees’ discharge.
46 The day after Phillis testified Respondent belatedly objected to
this point of her testimony arguing that it was hearsay. At that time
counsel for the General Counsel pointed out that if Respondent had
made a timely objection she would have indicated that the testimony
was not being offered for the truth of the mattter asserted. In other
words, counsel for the General Counsel was not attempting to prove
through Phillis’ testimony that Daley was in fact snorting white
powder. If the significance of an offered statement lies solely in the
fact that it was made, no issue is raised as to the truth of anything
asserted and the statement is not hearsay. Emich Motors Corp. v.
General Motors Corp., 181 F.2d 70 (7th Cir. 1950), revd. on other
grounds 340 U.S. 558 (1951).
assertion; that Respondent may not lawfully prohibit employ-
ees from engaging in conversations about their supervisor’s
conduct insofar as it affects their working conditions and
such communication is a necessary prerequisite to concerted
action and is protected under Section 7 of the Act; that em-
ployee conversations about their supervisor’s drug use, so
long as they are not so reckless or maliciously untrue as to
lose the Act’s protection, may not subject the employees to
discipline or discharge, NLRB v. Electrical Workers IBEW
Local 1229 (Jefferson Standard), 346 U.S. 464 (1953),
Emarco, Inc., 284 NLRB 832 (1987), and Cincinnati Subur-
ban Press, 289 NLRB 966 (1988); that inasmuch as Murphy
merely reported what she had been told by others and be-
lieved to be true, she did not forfeit the Act’s protection and
she did not act recklessly or maliciously; and that Murphy’s
conversations about drugs and Daly looked toward group ac-
tion, in that Murphy spoke of asking that Daly be treated for
drugs if he mistreated employees. Respondent, on brief, ar-
gues that Respondent’s work rules list ‘‘[m]aking or publish-
ing vicious or malicious statements concerning any . . . su-
pervisor’’ as a ‘‘Serious Conduct Violation’’ (G.C. Exh. 2 at
50); that the same rules also indicate that ‘‘[t]he seriousness
of the violation will ultimately dictate the form of discipline
to be used’’ (emphasis in original), id. at 44; that there is
no credible evidence that Ankney and Miller had any knowl-
edge of any union activity by Murphy; that it cannot be pre-
sumed that Kellis informed Ankney or Miller of his discus-
sions with Murphy about her union activity since Ankneys’
denial of any knowledge of Murphy’s union activities is
uncontradicted; that even assuming, arguendo, Respondent’s
knowledge of Murphy’s union activity, any inference of dis-
criminatory animus is rebutted by the lapse of 7 months be-
tween the time of the election campaign and any union ac-
tivities by Murphy had ceased and Murphy’s termination;
that Murphy’s activities on behalf of the Union, wearing a
union button only occasionally and attending only one union
meeting, were minor; and that Murphy’s conduct did not
constitute protected activity and no witness corroborated
Murphy regarding the report of a coworker’s child since
Phillis’ testimony assertedly was not offered for the truth of
the matter asserted.
Murphy discussed her support of the Union with Super-
visor Kellis during the union campaign. While he testified
here, Kellis did not deny that this occurred. Murphy wore
prounion paraphernalia. She was voted on the bargaining
committee, along with Monroe, after the election. Kearns’
testimony is credited that sometime after January 1, 1992,
Ankney told Supervisor Daly that he should not let Murphy
talk to Monroe while the former was on the clock because
both of them were union representatives. While Daly testified
here he did not deny that this occurred. Ankney testified that
he never made any statement with regard to the fact that
Murphy was a shop steward. Ankney’s testimony wittingly
or unwittingly misses the point. Murphy was not a shop
steward. Murphy engaged in union activity and Respondent’s
management knew it.44 As noted above, there was antiunion
animus on the part of Respondent. Under Wright Line, supra,
the General Counsel has made a prima facie case.45
In the fall of 1991 Murphy and other employees discussed
the fact that Daly’s nose was running all of the time and one
of the employees mentioned that her son had been at Daly’s
house and saw him snort white powder. Murphy’s testimony
on this later point was corroborated by Phillis. Both Mur-
phy’s testimony and Phillis’ corroborating testimony are
credited.46
In early 1991, after some employees discussed the fact that
if they had a problem with Daly, they would ask the Com-
pany to give him a drug test, Murphy told Ankney that the
third-shift employees were upset about Daly’s drug use.
Ankney conceded that Murphy told him that Daly was taking
drugs at the plant and all of the employees on the shift were
concerned about it. He also testified that it was reasonable
to conclude from what Murphy said that she had conversa-
tions with other employees about Daly’s alleged drug use.
Ankney did not prohibit Murphy from discussing this matter
815WELLS ALUMINUM CORP.
with other employees. About 6 months later Murphy dis-
cussed this issue with two company employees who work at
Wells. Subsequently, as noted above, she was terminated.
Murphy testified that during her discharge meeting she told
Miller that she believed Daly used drugs and when Miller
asked her if she had ever seen Daly use drugs she replied
that she had never seen Daly drinking but the employees
knew that Daly came into work under the influence of alco-
hol and it was in his record. Contrary to the assertions of
Daly, the Respondent was concerned about certain of his be-
havior and it had documented that he had a problem with
one substance, alcohol. Miller was concerned enough about
it to tell Daly when be became a supervisor that drinking
would not be tolerated and if it occurred Daly would be
gone. Ankney also spoke to Daly about the Company’s con-
cern with his purported drinking problem. In light of all of
this, were Murphy’s statement to the two temporary employ-
ees so reckless or maliciously untrue that she lost the Act’s
protection? I do not believe that is the case. Murphy was not
even placed on notice that the Company did not believe that
it was appropriate to discuss this matter with other employ-
ees unless she had proof. In the absence of Murphy’s union
activity, I do not believe that she would have been termi-
nated over this. Ankney, with the prior plant manager, par-
ticipated in the disciplining of Lyons, who was not termi-
nated even though his misconduct involved—as Respondent
itself concluded—potentially criminal acts, namely exposing
himself two times to a female employee. Murphy’s conduct
did not involve potentially criminal acts. But Murphy was in-
volved in union activity. Respondent violated the Act as al-
leged in discharging Murphy.
Paragraphs 7 and 8 of the involved complaint allege that
if Respondent’s objections to the aforementioned election are
overruled, then Respondent unlawfully implemented a num-
ber of changes in the involved employees terms and condi-
tions of employment without providing the Union with prior
notice and the opportunity to bargain. Since I conclude, infra,
that sufficient grounds have not been advanced for setting the
election aside, Respondent violated the Act as alleged in
these paragraphs.
Objections
Wells’ objections set for hearing are as follows:
1. The Union, through Representative Robert Hamons,
threatened employees with loss of work and jobs if they did
not select UAW as their representative.
2. The Union, through its agents, threatened employees
with damage to their person, damage to their homes, and
damage to their automobiles if they opposed the UAW’s at-
tempt to organize the Employer.
3. The Union, through its agents, intimidated and coerced
employees in the exercise of their rights to oppose unioniza-
tion. Employees are coerced and intimidated whenever they
engaged in procompany conduct and were told by prounion
employees not to remove union paraphernalia from company
property.
4. The Union, through its agents, promised employees ben-
efits if they selected the UAW as their representative.
5. The Union, through its agents and representative, en-
gaged in other conduct which interfered with employees’ ex-
ercise of free choice in the election and which destroyed the
‘‘laboratory conditions’’ in which the election should have
been conducted.
6. The Union, through its agents, defaced the NLRB notice
and sample ballot and placed UAW paraphernalia on the
sample ballot notice.
7. The Union, through its agents, misrepresented facts con-
cerning the election to employees when the Employer did not
have sufficient time to reply.
8. The Union, through its agents, solicited union support
during worktime.
9. The Union would not allow procompany employees to
attend union meetings.
10. Employees and others have engaged in conduct which
interfered with employees’ exercise of a free choice in the
election and which destroyed the ‘‘laboratory conditions’’ in
which the election should have been conducted.
As stated in Chicago Metallic Corp., 273 NLRB at 1704–
1705:
It is well settled that an election will be set aside
where there is an atmosphere of violence or threats of
violence which precludes employees from exercising a
free choice.161 For conduct to warrant setting aside an
election, not only must that conduct be coercive, but it
must be so related to the election as to have a probable
effect upon the employees’ actions at the polls.162 The
burden of proving that an election should be invalidated
because of objectionable conduct rests with the party
filing the objections, in this case, the Respondent.163
The Respondent, as the party challenging preelection
conduct, must establish that such conduct impaired em-
ployees freedom of choice.164 Thus, when preelection
conduct is challenged on the basis that it interfered with
the election, the critical inquiry is whether employees
were able to exercise free choice.165
161 Price Bros. Co., 211 NLRB 822 (1974); Valley Rock Products
v. NLRB, supra; Zieglers Refuse Collecters v. NLRB, supra.
162 Valley Rock Products v. NLRB, supra; NLRB v. Golden Age Bev-
erage Co., 415 F.2d 26 (5th Cir. 1969).
163 NLRB v. Mattison Machine Works, 365 U.S. 123 (1961); Camp-
bell Products Department, 260 NLRB 1247 (1982). As the Ninth Cir-
cuit Court of Appeals stated in Valley Rock Products v. NLRB, supra,
590 F.2d 300, 302:
It is well established that Congress has entrusted the Board with
wide discretion in conducting and supervising elections. NLRB v.
Suak Valley Mfg. Co., 486 F.2d 1127, 1130 (9th Cir. 1973). Accord-
ingly, the party challenging the election carries a heavy burden in
charging that coercion prevented a fair election, for evidence must
be furnished overcoming the presumption that ballots cast under the
the safeguards provided by Board procedure reflect the true desires
of the participating employees.
164 NLRB v. Eurodrive, Inc., 724 F.2d 556 (6th Cir. 1984); NLRB
v. Basic Wire Products, 516 F.2d 261 (6th Cir. 1975).
165 Ibid.
The first objection set forth above is overruled. It refers
to the Hamons’ statements at the above-described October 7,
1991 union meeting. As indicated in footnote 2 of the report
on objections (G.C. Exh. 1(z)), Wells also filed an unfair
labor practice charge in Case 9–CB–8057 alleging that the
Petitioner’s conduct, set forth in this objection, was coercive
and in violation of Section 8(b)(1)(A) of the Act. Footnote
2 goes on to indicate that on June 30, 1992, the General
Counsel affirmed the Acting Regional Director’s dismissal of
the charge, and by letter dated August 27, 1992, denied
816 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Wells’ July 8, 1992 motion for reconsideration of the denial
of the appeal. Wells, on brief, contends that the Navistar
work involved 31 of the 55 bargaining unit jobs; that the
statements by Hamons, made to over half the voting unit,
constitute threats of economic reprisal which interfered with
employee free choice in the election; that such threats are
grounds for overturning an election; and that the Board in
Van Leer Containers, 298 NLRB 600 (1990), stated that a
threat of job loss is coercive and, therefore, would be a
ground for overturning an election. The Union, on brief, cites
footnote 2 in the report on objections. In Van Leer Contain-
ers, supra at 600, the Board, in a case similar to the one at
hand, upheld the election concluding that the union’s state-
ment
provides an unambiguous explanation of the Union’s
legal obligation to represent only employees who have
selected it as their representative—an explanation given,
not gratuitously, but in response to questions raised by
communications to employees from sources other than
the Union.
This reasoning of the Board would apply with equal force
here. Consequently, Objection 1 does not supply a reason for
overturning the election.
On brief, Respondent treats the remaining objections under
four headings. The first is that the Union’s agents and sup-
porters interfered with the election by threatening other em-
ployees with physical harm and property damage. Wells re-
fers to (1) the anonymous telephone call Daly allegedly re-
ceived with the caller assertedly threatening to split his head
open if he did not quit knocking the Union, (2) Hess alleg-
edly overhearing Linder and Shepherd make threats against
other employees, and (3) Fullerton being threatened after he
removed a union sticker. I have a problem with Daly’s credi-
bility in that he attempted to play down what transpired be-
tween himself and Wells’ management regarding his drink-
ing. In making this attempt, he was less than candid about
the Company’s expressed concerns. Daly himself made an
issue out of the fact that his daughter overheard the alleged
telephone threat. In effect Daly was testifying that there is
corroboration. But the daughter was not called to testify at
the hearing here. Her age was not made a matter of record.
Perhaps, she is very young. Daly testified, however, that she
overheard the threat and they discussed it after he hung up
the telephone. This was the only alleged anonymous tele-
phone threat testified about in this proceeding. Daly, who
was not a supervisor at the time, did not file a police report.
And he personally did not contact the telephone company.
According to Daly’s testimony, he turned the matter over to
Wells’ management and was subsequently told by Miller that
the telephone company would not take any action. While
Miller testified here, he did not testify about any efforts he
may have made with respect to the telephone company or the
authorities. Daly is not credited. And even if he were, this
one, isolated alleged anonymous telephone call considered
alone or in conjunction with other conduct at issue here,
would not warrant setting the election aside. The employees
he allegedly told about the telephone call did not testify here
to corroborate Daly.
As noted above, I do not credit Hess’ testimony about
Linder’s and Shepherd’s alleged threats. Fullerton’s testi-
mony is credited. He did not, however, vote in the election
because he was a temporary. And it is not asserted that any
of the employees involved in the Fullerton matter was acting
on behalf of the Union, was an agent of the Union, or that
the Union instigated, directed, authorized, adopted, ratified,
or condoned this conduct. Additionally, it is not asserted that
Fullerton told any employee who did vote about the conduct
directed against him. Fullerton’s treatment, considered alone,
or in conjunction with other conduct at issue here, would not
warrant setting the election aside.
Wells also includes the above-described testimony of Shel-
by and Walker under this heading. Shelby’s testimony must
be viewed in the light of the fact that no one was asked to
leave the union meeting and that those present asked a lot
of questions about the pros and cons of a union. Her testi-
mony does not support Wells’ objection that the Union
would not allow procompany employees to attend union
meetings. And Walker’s testimony must be viewed in the
light of the facts that she did not remove her ‘‘Vote No’’
button at the employee meeting; that she did not leave the
meeting but rather stayed for another hour after her ‘‘Vote
No’’ button became an issue; and that there is a conflict as
to who told her to remove the ‘‘Vote No’’ button in that in
her December 4, 1991 affidavit, which was taken about 2
months after the incident, she indicated that it was two fe-
male employees, while she testified at the hearing she as-
serted that she thought a lot about the meeting, after giving
her affidavit, and it was Shepherd who told her to remove
the button. In these circumstances it is difficult to credit
Walker’s testimony regarding Shepherd’s role in this inci-
dent. And even if I did, which I do not, in my opinion it
has not been demonstrated that this was anything but a meet-
ing of the employees themselves. Moreover, in view of the
fact that Walker did not remove the button which apparently
offended some of her fellow employees, and she did not
leave the meeting, I do not believe that what occurred is an
adequate reason, considered alone or in conjunction with
other conduct at issue, for setting the election aside.
Respondent argues that even if none of the above-de-
scribed threats were attributable to agents of the Union, the
threats contributed to an atmosphere of fear and coercion that
warrant setting aside the election. I disagree. In my opinion
it has not been demonstrated that there was an atmosphere
of fear and coercion that warrants setting aside the election.
Wells’ second heading, on brief, is that the Union, through
its agents and supporters, interfered with the election by al-
tering the official notices of election to mislead employees
into believing that the Board favored the Union. Although
Koverman, according to Miller’s testimony, was the first to
discover the Board’s sample ballot with a handwritten ‘‘X’’
in the ‘‘yes’’ box and a ‘‘Vote UAW’’ sticker on it, and al-
though she testified here, she did not testify about any sam-
ple ballots. Again, while one of Respondent’s witnesses testi-
fies that there is corroboration, the alleged corroborating wit-
ness is not called to corroborate. While Miller saved the
sample ballots, did he save the offending stickers? No, ac-
cording to his testimony the round stickers were peeled off
the sample ballots (taking some of the print with them) and
he then threw the stickers out. One is left to rely on his testi-
mony alone as to the allegedly removed stickers. As noted
above, I did not find Miller to be a credible witness. There
is no basis for attributing the ‘‘X’’ to the Union. As pointed
817WELLS ALUMINUM CORP.
47 The fact that the stickers, whatever they were, obviously cov-
ered only a portion of the printed material, thereby precluding a
reader from making sense out of what was left of that portion of
the printed material, would lead a reasonable person to conclude that
they were not part of the official notice but rather were a deface-
ment.
48 The case decided by Members Fanning, Jenkins, and Zimmer-
man.
out in Sugar Food, 298 NLRB 628 (1990), where, as here,
the modification to the official sample ballot is clearly not
part of the official notice,47 ‘‘employees viewing the defaced
notices would not likely be misled by this anonymous . . .
conduct into believing that the Board favored the Petitioner.’’
This objection is overruled.
And Wells’ third heading on brief is that the Union inter-
fered with the election by distributing union hats and shirts
during the preelection period in order to induce employees
to vote in favor of union representation. Wells cites NLRB
v. Schrader’s, Inc., 928 F.2d 194 (6th Cir. 1991), arguing
that the court held that if an employee distributed 10 union
T-shirts and 10 union hats during the voting period, it would
clearly warrant setting aside the election. The following ap-
pears in R. L. White Co., 262 NLRB 575, 576 (1982):48
3. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by distributing and encouraging employees, in a co-
ercive manner, to wear pro-Respondent T-shirts. How-
ever, the Administrative Law Judge made an additional
finding that the T-shirts constituted an unlawful grant
of a benefit in violation of Section 8(a)(1). Respondent
has excepted to this finding, contending that the T-
shirts were merely inexpensive pieces of campaign
propaganda. We find merit in this exception.
A party to an election often gives away T-shirts as
part of its campaign propaganda in an attempt to gen-
erate open support among the employees for the party.
As such, the distribution of T-shirts is no different than
the distribution of buttons, stickers, or other items bear-
ing a message or insignia. A T-shirt has no intrinsic
value sufficient to necessitate our treating it differently
than other types of campaign propaganda, which we do
not find objectionable or coercive. See, e.g., Lach-
Simkins Dental Laboratories, Inc., 186 NLRB 671, 672
(1970). Accordingly, we hereby dismiss this allegation
of the complaint. [Emphasis added.]
Two years later Chairman Dotson and Members Hunter and
Dennis, with Member Dennis dissenting, issued a decision in
Owens-Illinois, Inc., 271 NLRB 1235, 1236 (1984), contain-
ing the following language of the majority:
As to the gifts of union jackets, the Petitioner’s busi-
ness representative Christ admitted that he handed out
about 25 jackets with union insignia to employees who
came to his room at the Ramada Inn during the period
between the first and second voting sessions and that
about five or six of these employees had not yet voted.
The jackets cost the Petitioner $16 each, and thus the
Petitioner’s gifts to unit employees on election day to-
taled about $400. The Regional Director concluded that
the Petitioner’s gifts were not objectionable, because
there was no evidence that the jackets were given to
any employee conditioned on a promise to vote for the
Petitioner but rather it appeared the jackets were given
to employees who had already manifested support for
the Petitioner. We are persuaded, however, that dis-
tribution of these jackets was objectionable conduct.
While only five or six employees received jackets be-
fore voting, the vote tally and our disposition of the
challenged ballots show that five or six votes could
have determined the election’s results. Moreover, these
jackets were not given away during the preelection
campaign but on election day itself; distributed as they
were between voting sessions, they could well have ap-
peared to electorate as a reward for those who had
voted for the Petitioner and as an inducement for those
who had not yet voted to do so in the Petitioner’s
favor. While not dispositive, we note that the evidence
indicates one employee was heard to say, ‘‘the way I
voted I better get a jacket.’’ Although the Board held
in R. L. White Co., 262 NLRB 575, 576, (1982), that
distribution inexpensive pieces of campaign propaganda
such as buttons, stickers, or T-shirts is not per se objec-
tionable conduct, the value of the jackets given away
here far exceeds that of the items considered in R. L.
White. Given all the circumstances of this case, we find
the Petitioner’s distribution of these jackets was objec-
tionable conduct. Accordingly, we shall sustain Objec-
tion 1 and set aside the election.
Member Dennis’ dissent reads as follows:
Contrary to my colleagues, I would adopt the Re-
gional Director’s finding that the Petitioner did not en-
gage in objectionable conduct by giving employees
jackets with union insignia. Applying the objective
‘‘tendency-to-influence test’’ set forth in Board and
court precedent,1 cannot find that a $16 union jacket is
of sufficient value to create in the recipient a feeling of
obligation to favor the Petitioner in the election. Rather,
I would find that the Petitioner’s conduct here was
comparable to that of the employer in R. L. White Co.,
262 NLRB 575, 576 (1982), where the distribution of
company T-shirts was found to be permissible.2 The
Board correctly recognized in R. L. White that the dis-
tribution of inexpensive pieces of campaign propaganda
is commonplace in NLRB elections. I decline my col-
leagues’ invitation to begin regulating such innocuous
conduct.
1 See, e.g., Gulf States Canners, 242 NLRB 1326 (1979), and cases
cited therein, enfd. 634 F.2d 215 (5th Cir. 1981). Because the test is
an objective one, my colleagues’ reliance on the subjective reaction of
one employee is erroneous.
2 My colleagues also regard as significant the $400 total value of
the Petitioner’s gifts to employees. In R. L. White, however, the em-
ployer distributed 468 T-shirts (262 NLRB at 588), and therefore the
two cases cannot be distinguished on that ground.
The court in NLRB v. Schrader’s, Inc., supra at 198, stated
as follows:
Furthermore, we are confused by the agency’s internal
fussing over whether these hats and shirts may have
cost a few pennies more or less than the jackets in
Owens-Illinois. Manifestly, precise monetary measure
818 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
49 Undoubtedly some may view a T-shirt as just another shirt that
they can wear to work.
50 Whether an employee is represented by a union can have a sig-
nificant impact on his or her working situtation. It is difficult to be-
lieve, assuming arguendo that items such as a union T-shirt or cap
have an intrinsic value sufficient to necessitate treating them dif-
ferently than other types of campaign propaganda, that an individual
would make his or her decision based on the receipt of a trinket—
a T-shirt or cap with union writing and/or an insignia on it.
51 Shepherd testified that the union T-shirts were given to people
at union meetings before the election and that anyone at the union
meetings would just take the T-shirts which were laid out for them.
Monroe testified that he got his union T-shirt and union cap at a
union meeting a week or two before the election; that the T-shirts
were in boxes; and that Hamons, told those present at the meeting
that they could take a T-shirt if they wanted one. Linder testified
that he received his union T-shirt and cap at a union meeting and
that ‘‘[t]hey were laying on a table and you would take one if you
wanted one. I needed a work shirt because they get pretty dirty
where I worked at, so I just grabbed one of them.’’ This testimony
of these three witnesses is credited.
52 Or perhaps Wells was referring to some combination of those
who allegedly overheard Linder’s alleged threats or allegedly were
told about the alleged threat of Daly over the telephone.
53 Wells does not treat its original Objection 8 in its brief. Assum-
ing arguendo that two of Wells’ employees, who were working,
were asked to sign union authorization cards by other employees of
Wells, this would not be grounds for setting an election aside.
of value was not the question in Owens-Illinois, and it
should not be the question in this case. The inquiry, as
it is relevant to a charge of improper electioneering,
concerns the potential of the gifts to influence voting
decisions: Are the articles sufficiently valuable and de-
sirable in the eyes of the person to whom they are of-
fered to have the potential to influence that person’s
vote? Although workers may be willing to accept cam-
paign buttons and bumper stickers to show support for
a union, those articles have little potential to ‘‘pur-
chase’’ or otherwise unduly influence a vote, especially
when contrasted with attractive ball caps, T-shirts, and
jackets. Viewed in this context, there is no meaningful
distinction between the apparel offered in Owens-Illi-
nois and the apparel [10 T-shirts and 10 hats] offered
in this case.
Here, the obvious purpose of items such as T-shirts and
caps which have the same prounion message printed on them
or the Union’s insignia imprinted thereon is to indicate that
the wearer supports the Union. Sometimes such paraphernalia
has a message, i.e., ‘‘VOTE YES.’’ It is advertising for a
specific purpose. The wearers are wearing cloth billboards.
They are declaring to fellow employees and, as is the case
here, to management ‘‘I support the Union.’’49 The more
people wear these billboards advertising their support of the
Union, the more likely that some who are undecided may
vote for the Union. As noted above, this message was not
lost on Miller. He made note of the fact that employees wore
union T-shirts on the day of the election and he went after
two of them, Monroe and Linder. Here, it does not appear
that the cloth billboards given out at the day of the election
influenced the outcome of the election. As noted above, one
of Respondent’s supervisors told Monroe that Miller esti-
mated before the election that Respondent was going to lose
by five votes. Respondent lost by five votes. The Board has
never concluded that union T-shirts or baseball type caps are
valuable enough to influence a vote.50 I am bound to follow
Board law. Moreover, here, unlike Owens-Illinois, supra, and
Schrader’s, Inc., supra, since the items were given away dur-
ing the preelection campaign51 and not just on the election
day itself, they should not have appeared to the electorate to
be a reward for those who voted for the Petitioner and as
an inducement for those who had not yet voted to do so in
the Petitioner’s favor.
And Wells’ fourth heading is that the cumulative effect of
the objectionable conduct by the Union, its agents, and its
supporters rendered a free and fair election impossible. Wells
points out that the Sixth Circuit Court of Appeals has noted
that ‘‘[o]ur court has repeatedly emphasized the intensified
effect of threats and violence in a small unit, particularly
where the election results are close.’’ John M. Horn Lumber
Co. v. NLRB, 859 F.2d 1242, 1244 (6th Cir. 1988). On the
last page of its brief Wells argues ‘‘Steve Linder and Mike
Shepherd made threats involving at least six employees.’’ On
its face, this assertion would appear to mean that a total of
at least six employees was collectively the objects of
Linder’s and Shepherd’s alleged threats. On the record made
here, only three employees, Daly, Shaw, and Sullenberger,
were allegedly the objects, collectively, of Linder’s and
Shepherd’s alleged threats. Wells’ assertion on brief doubles
this number. Perhaps Wells, in making this assertion, is also
counting Linder, Shepherd, and Hess.52 If that is the case
perhaps Wells would have been well advised to explain the
basis of its representation so that the reader would not be
mislead. In any case, as noted above I do not credit Hess’
and Daly’s testimony regarding the alleged threats and even
if Daly’s testimony were credited, this isolated telephone
threat was anonymous.
All of Wells’ objections are overruled.53 It has not dem-
onstrated that there is sufficient grounds for setting the elec-
tion aside.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. By maintaining an unlawful no-solicitation, no-distribu-
tion rule, the Respondent violated Section 8(a)(1) of the Act.
4. By disparately applying its bulletin board policy to pro-
hibit the posting of union literature and by unlawfully remov-
ing union literature from the employee bulletin board, the
Respondent violated Section 8(a)(1) of the Act.
5. By threatening employees that their wages and benefits
would be frozen if the employees selected the Union as their
bargaining representative, the Respondent violated Section
8(a)(1) of the Act.
6. By impliedly promising an employee increased benefits
and improved terms and conditions of employment if he re-
frained from selecting the Union as his bargaining represent-
ative, the Respondent violated Section 8(a)(1) of the Act.
7. By giving the impression that an employees’ union ac-
tivities were under surveillance, the Respondent violated Sec-
tion 8(a)(1) of the Act.
819WELLS ALUMINUM CORP.
54 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set forth in the 1986
amendment to 26 U.S.C. § 6621.
55 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.
8. By coercively interrogating an employee concerning his
union sympathies, the Respondent violated Section 8(a)(1) of
the Act.
9. By discharging Stephen Linder, Michael Shepherd, and
Connie Murphy, the Respondent violated Section 8(a)(1) and
(3) of the Act.
10. The following employees of Respondent, the unit, con-
stitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of the Act:
All production and maintenance employees, including
quality control, shipping, group leaders, purchasing-in-
ventory control clerk, production scheduler, engineering
specialist-draftsperson, and QSP clerk, at the Employ-
er’s Sidney, Ohio facility, excluding manpower tem-
porary employees, office clerical employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
11. By making specified unilateral changes in May and
June 1992 in the wages, hours, and other terms and condi-
tions of employment of the involved unit without prior notice
to the Union and without affording the Union an opportunity
to bargain, the Respondent violated Section 8(a)(1) and (5)
of the Act.
12. The unfair labor practices set forth above are unfair
labor practices affecting commerce within the meaning of
Section 2(6) and (7) of the Act.
The Objections in Case 9–RC–15953
It having been established here that the Respondent has
not shown sufficient reason warranting the setting aside of
the election held on November 14, 1991, I recommend that
Respondent’s objections be overruled. Since the Union re-
ceived a clear majority of the ballots cast in the election, I
recommend that the Board certify the Union as the exclusive
bargaining representative of the employees in the above-de-
scribed unit.
THE REMEDY
Having found that Respondent has engaged in unfair labor
practices, I shall recommend that Respondent be ordered to
cease and desist therefrom and to take certain affirmative ac-
tion designed to effectuate the purposes of the Act.
Having found that Respondent discharged Stephen Linder,
Michael Shepherd, and Connie Murphy in violation of Sec-
tion 8(a)(1) and (3) of the Act, it is recommended that Re-
spondent offer Stephen Linder, Michael Shepherd, and
Connie Murphy immediate and full reinstatement to their
former jobs or, if that those jobs no longer exist, to substan-
tially equivalent positions without prejudice to their seniority
or other rights and privileges, and make them whole for any
loss of pay they may have suffered as a result of the dis-
crimination against them by payment to them of a sum of
money equal to that which they would have earned as wages
during the period from the date of their discharge to the date
on which Respondent offers reinstatement less net earnings,
if any, during said period with interest as computed in F. W.
Woolworth Co., 90 NLRB 289 (1950), and New Horizons for
the Retarded, 283 NLRB 1173 (1987).54
I shall also recommend that Respondent be required to re-
move from its files any reference to the discharges of Ste-
phen Linder, Michael Shepherd, and Connie Murphy and no-
tify them in writing that this has been done and that evidence
of their discharges will not be used as a basis for future per-
sonnel action against them.
With respect to the unilateral changes made by Respond-
ent, I shall also recommend to the Board that the Respondent
at the Union’s request, return to the status quo ante which
was in effect prior to the Respondent’s implementation of
such unilateral changes, with regard to the rates of pay,
wages, hours, and other terms and conditions of employment,
and that Respondent reimburse the involved employees for
any monetary losses they may have suffered as a result of
Respondent’s unilateral changes, with interest thereon to be
computed in the manner prescribed in New Horizons (see
generally Isis Plumbing & Heating Co., 138 NLRB 716
(1962)), and continue such payments until such time as Re-
spondent negotiates in good faith with the Union or to im-
passe.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended55
ORDER
The Respondent, Wells Aluminum Corporation, Sidney
Division, Sidney, Ohio, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Maintaining an unlawful no-solicitation, no-distribution
rule.
(b) Disparately applying its bulletin board policy to pro-
hibit the posting of union literature and unlawfully removing
union literature from the employee bulletin board.
(c) Threatening employees that their wages and benefits
would be frozen if the employees selected the Union as their
bargaining representative.
(d) Impliedly promising an employee increased benefits
and improved terms and conditions of employment if he re-
frained from selecting the Union as his bargaining represent-
ative.
(e) Giving the impression that an employee’s union activi-
ties were under surveillance.
(f) Coercively interrogating an employee concerning his
union sympathies.
(g) Discharging employees because the employees assisted
the Union and engaged in concerted activities.
(h) Making specified unilateral changes in the wages,
hours, and other terms and conditions of employment of the
involved unit without prior notice to the Union and without
affording the Union an opportunity to bargain. The appro-
priate unit is:
820 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
56 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
All production and maintenance employees, including
quality control, shipping, group leaders, purchasing-in-
ventory control clerk, production scheduler, engineering
specialist-draftsperson, and QSP clerk, at the Employ-
er’s Sidney, Ohio facility, excluding manpower tem-
porary employees, office clerical employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
(i) In any other like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Offer Stephen Linder, Michael Shepherd, and Connie
Murphy immediate and full reinstatement to their former jobs
or, if those jobs no longer exists, to substantially equivalent
positions without prejudice to their seniority or any other
rights or privileges previously enjoyed, and make them
whole for any loss of earnings or other benefits suffered as
a result of the discrimination against them, in the manner set
forth in the remedy section of the decision.
(b) Remove from its files any reference to the unlawful
discharges and notify Stephen Linder, Michael Shepherd, and
Connie Murphy in writing that this has been done and that
the discharges will not be used against them in any way.
(c) On the Union’s request restore the status quo ante
which existed prior to the implementation of the unilateral
changes made by Respondent with regard to the rates of pay,
wages, hours, and other terms and conditions of employment
in the unit described above, and reimburse the employees in
the unit, or former employees in the unit, for any monetary
losses they may have suffered as a result of Respondent’s
unilateral changes, with interest thereon to be computed in
the manner set forth in the remedy section of this decision,
and continue such payments until such time as Respondent
negotiates in good faith with the Union or to impasse.
(d) Recognize and, on request, bargain with the Union as
the exclusive collective-bargaining representative of the em-
ployees of Respondent in the bargaining unit described
above, and embody in a signed agreement any understanding
which may be reached.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its facility in Sidney, Ohio, copies of the at-
tached notice marked ‘‘Appendix.’’56 Copies of the notice,
on forms provided by the Regional Director for Region 9,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
IT IS ALSO ORDERED that the objections in Case 9–RC–
15953 be overruled, the election held on November 14, 1991,
be validated, and the International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of
America, UAW be certified as the exclusive representative of
all the employees in the appropriate unit for purposes of col-
lective bargaining in respect to rates of pay, wages, hours of
employment, and other conditions of employment.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT maintain an unlawful no-solicitation, no-dis-
tribution rule.
WE WILL NOT disparately apply our bulletin board policy
to prohibit the posting of union literature and unlawfully re-
move literature from the employee bulletin board.
WE WILL NOT threaten you that your wages and benefits
would be frozen if you select the International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America, UAW as your bargaining representative.
WE WILL NOT impliedly promise you increased benefits
and improved terms and conditions of employment if you re-
frain from selecting the International Union, United Auto-
mobile, Aerospace & Agricultural Implement Workers of
America, UAW as your bargaining representative.
WE WILL NOT give the impression that your union activi-
ties are under surveillance.
WE WILL NOT coercively interrogate you concerning you
concerning your union sympathies.
WE WILL NOT discharge you because you assisted the
International Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America, UAW or any other
union and engage in concerted activities.
WE WILL NOT make changes in the wages, hours, and
other terms and conditions of your employment without prior
notice to the International Union, United Automobile, Aero-
space & Agricultural Implement Workers of America, UAW
and without affording the Union an opportunity to bargain.
The appropriate unit is:
All production and maintenance employees, including
quality control, shipping, group leaders, purchasing-in-
ventory control clerk, production scheduler, engineering
821WELLS ALUMINUM CORP.
specialist-draftsperson, and QSP clerk, at the Employ-
er’s Sidney, Ohio facility, excluding manpower tem-
porary employees, office clerical employees, and all
professional employees, guards and supervisors as de-
fined in the Act.
WE WILL NOT in any other like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer Stephen Linder, Michael Shepherd, and
Connie Murphy immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substantially
equivalent positions without prejudice to their seniority or
any other rights or privileges previously enjoyed, and WE
WILL make them whole, with interest, for any loss of earn-
ings or other benefits suffered as a result of our discrimina-
tion against them.
WE WILL notify Stephen Linder, Michael Shepherd, and
Connie Murphy in writing that we have removed from our
files any reference to their unlawful discharges and that the
discharges will not be used against him in any way.
WE WILL on the request of the International Union, United
Automobile, Aerospace & Agricultural Implement Workers
of America, UAW restore the status quo ante which existed
prior to the implementation of the unilateral changes made
by us with regard to the rates of pay, wages, hours, and other
terms and conditions of employment in the unit described
above, and reimburse you or former employees in the unit,
for any monetary losses they may have suffered as a result
of our unilateral changes, with interest, and continue such
payments until such time as we negotiates in good faith with
International Union, United Automobile, Aerospace & Agri-
cultural Implement Workers of America, UAW or to im-
passe.
WE WILL recognize and, on request, bargain with Inter-
national Union, United Automobile, Aerospace & Agricul-
tural Implement Workers of America, UAW as the exclusive
collective-bargaining representative of the employees in the
bargaining unit described above, and embody in a signed
agreement any understanding which may be reached.
WELLS ALUMINUM CORPORATION, SIDNEY
DIVISION