Wolerine Wolrd Wide, Inc.

WOLVERINE WORLD WIDE. INC. Wolverine World Wide, Inc. and United Food and Commercial Workers International Union, AFL- CIO. Cases 7 CA 14698(2) and 7 CA 14933 July 12, 1979 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENIlIO On April 17, 1979, Administrative Law Judge Mar- vin Roth issued the attached Decision in this proceed- ing. Thereafter. Respondent filed exceptions and a supporting brief, and the Charging Party filed an an- swering brief: Pursuant to the provisions of Section 3(h) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings. findings. and conclusions of the Administrative Law Judge and to adopt his recommended Order. as modified herein. We agree with the Administrative Law Judge that Respondent has violated Section 8(a)( ) of the Act. We do not agree, however, with his findings that the violations heretofore found against Respondent2 dem- onstrate a proclivity to violate the Act and, therefore. warrant the issuance of a broad order herein. In our view, three instances of misconduct committed during a period of 6 to 14 years ago are too remote in time from each other and from the instant proceeding to support such findings.' Accordingly. we shall issue a narrow order. We further find that, inasmuch as the record is devoid of any evidence indicating that the single unfair labor practice found herein had any im- pact or chilling effect on employee organizational ac- tivities at any of Respondent's plants outside the Ithaca, Michigan, plant involved herein, the remedial purposes of the Act will be effectuated sufficiently by requiring Respondent to post notices at its Ithaca plant only, rather than at all of its plants in the State of Michigan, as recommended by the Administrative Law Judge. Effective June 7, 1979, the Amalgamated Meat (utters and Butcher Workmen of North America (the Charging Party herein) and the Retail Clerks International Union merged into a new union identified as the United Food and Commercial Workers International Union. AFt. (10. 2 Wolverine Shoe d Tanning Corporation, 152 N L RB 307 ( 1965 )1 Wolverine World Wide, Inc, 193 NLRB 441 (1971); 197 NLRB 34 (1972), enfd. 477 F.2d 969 (6th Cir. 1973). 3 Respondent has submitted an offer of proof attacking the extraordinary remedy recommended by the Administrative I.aw Judge and purporting to show that its history of negotiated and executed collectise-bargaining agree- ments with various unions negates the necessity for such a remedy In view of our disposition herein. He find it unnecessary to pass on the offer. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative L.aw Judge, as modified be- low, and hereby orders that the Respondent, Wolverine World Wide, Inc., Rockford. Michigan. its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph (c): "(c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to organize; to form. join, or assist labor organizations: to bargain collectively through repre- sentatives of their own choosing; to engage in con- certed activities for the purpose of collective bargain- ing or other mutual aid or protection: or to retrain from any and all such activities." 2. Substitute the following for paragraph 2(a): "(a) Post at its plant at Ithaca. Michigan. copies of the attached notice marked 'Appendix.'1 2 Copies of said notice, on forms provided by the Regional [)irec- tor foir Region 7, after being duly signed hb Respon- dent's authorized representative, shall be posted hb Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced. or covered b an other material." 3. Substitute the attached notice for that of the Administrative l.aw Judge. I1I S F RI ER ()RI)RED1) that the allegations of the complaint with respect to interrogation and to the suspension and discharge of Ilene Kamperda be, and they hereby are. dismissed. APPENDIX NoI(ctE To EMPI.)YEFS POSrtl) BY ORDER O[: HE NAIIONAI. LABOR R.ATIONs BOARD An Agency of the United States Government After a hearing at which all parties had an opportuni- ty to present evidence, the National l.abor Relations Board has found that we violated the National Labor Relations Act, as amended, and has ordered us to post this notice and to carry out its provisions. WI wt.I NOT threaten employees with law- suits, criminal prosecution, or other reprisal be- cause they give testimony in a Board proceeding. 243 NLRB No. 72 425 I)t:(CISIONS OF NATIONAL LABOR REI.ATIONS BOARD WtI Wlll. NOI threaten employees with dis- charge or other reprisal because they discuss such testimony with their fello\w employees. Wi; Wil. NO)I in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights to organize; to form, join, or assist labor organizations. including United Food and Commercial Workers Interna- tional Union. AFL CIO: to bargain collectively through representatives of their own choosing; to engage in concerted activities for the purpose of collective bargaining or other mutual aid or pro- tection; or to refrain from any and all such ac- tivities. All our employees are free to become, remain, or refuse to become or remain, members of said United Food and Commercial Workers International Union, AFL CIO, or any other labor organization. W()ivi RINI WORI) WIDE, IN(. D)I( ISION Slil I-NI ()0 1111i (AS MAR\ IN Rolil Administrative Law Judge: These con- solidated cases were heard at Ithaca Michigan, on Septem- her 15 and Octoher 5. 1978. The charges were filed on )e- cember 16, 1977. and March 6 1978, respectively, by Amalgamlated Meat (utters and Butcher Workmen of North America, AFI, (10 (herein the Union). The consoli- datted complaint, which issued on May 24. 1978. alleges that Wolverine World Wide. Inc. (herein the (Company or Respondent). iolated Section 8(a)(II and (3) of' the Na- tional Iabhor Relations Act, as amended. The gravamen of the complaint is that the Company allegedly suspended and subsequently discharged Ilene Kamperda because of her support fr the Iinion, engaged in unlawful interrogation, and threatened an employee with reprisal because of his testimony in a Board representation proceeding. The Com- pany's answer denies the commission of the alleged unfair lahor practices. All parties were afforded ull opportunity to participate, to present relevant evidence, to argue orally, and to tile briefs. lUpon the entire record in this case and rom my obser- ,ation of the demeanor of the witnesses, and having consid- ered the arguments of counsel and the briefs submitted by (ieneral Counsel, the Union, and Respondent I make the following: FINDIN(iS ()F FA(I I. i lti BUSINF.SS OF RiSEPONI)I NI The Company, a Michigan corporation with its principal office and place of business in Rockford, Michigan. main- IThe Union's unopposed motion to correct errors il transcript is hereby granted, and the transcript is corrected accordingly. tains plants in various cities in Michigan. The Company manufactures, sells, and distributes pigskin and cowhide products, including shoes and related products. The Com- pany's Ithaca, Michigan, plant, where the alleged unfair labor practices took place. manufactures tlush Puppy brand casual shoes. In the operation of its business, the Company annually ships goods valued in excess of S50.000 from its Michigan plants to customers located outside the State of Michigan. I find, as the (ompan admits, that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. 1111 1 AB()R (RiANIZA II()N INV()I 1I) The Union is a labor organization within the meaning of Section 2(5) of the Act. Ill. Ilil AI I (;l I) I A½OR 'R I 11( S A. B(l Agroutndl The Company has an extensive history of unfair labor practice conduct. In Io/lvrerinlc It orh/l Wide. I., 193 NI,RB 441 (1971). in which the Union was the charging party, the Board lund that the (ompans committed viola- lions of Section 8(a)( ) and (3) of the Act at two plants in Big Rapids Michigan. Iwo ears earlier, in a case in which the Teamsters U nion was the charging party. the (Cornpan consented to the entry of a Board I)ecision and Order find- ing that the ('ompany had engaged in violations of Section 81a)(1). In ol/veritle or/d It lri/, Inc. 197 NI.RB 34 (1972). enfd. 477 F.2d 969 6th (ir. 1973), in which the Union was the charging party, the Board iound that the ('ompany engaged in conduct ,iol;ltive of' Section 8(a)1 ). (3) and (5) at panlts in (irand Rapids Michigan. I he Adl- ministrative aw Judge observed that this was the third unfair labor practice proceediig Invol ing the (ompany (noting the two above mentioned). In fact, it was probably the fourth. In Il'ro/teriel Sllhoe &d 7i1ning ( orp/oraliol. 152 NI.RB 307 (1965) in which Allied Industrial Workers was the charging labthor organization, the Board found that the respondent therein engaged in violations of' Section 8(a)( 1) and (3) of the Act at its Rockbord and Ithaca, Michigan plants. Although the name of the respondent therein dif- fered slightly from that of the present Company. the de- scription indicated that it was the same or a predecessor firm. Although General counsel requested at the outset of this hearing that I take administrative notice of the three cited decisions, and company counsel responded to that re- quest, the C(ompany did not suggest that W'olrin Sloe & Tanning involved a different firm. In all three reported De- cisions, the Board issued a broad remedial order, in sum enjoining the Company and its successors from in any man- ner interfering with the statutory rights of its employees. On July 19, 1977,2 the Union filed a petition for a Board- conducted election at the Ithaca plant. (Case 7 RC 14422.) The Company and the Union executed a consent election agreement on August 15. and the election was held on Sep- All dates herein refer Ito the period rom Jul) I. 1977. through June 30. 1978, unless otherwise indicated. 426 WOI VIE RINI WORI 1) WI)l. IN(C tember 16. he Union lost hb a vote of 162 t 171. On September 22 the linion filed timely objections to the elec- tion, some of which involved alleged company misconduct which was also the subject of unair labor practice charges. Further proceedings on the charges were terminated when the parties agreed to an inlormnal settlement agreement. The Company and the Union signed the agreement on I)ecem- her 8. and it was approved by the Board's Regional Direc- tor on December 12. In the meantime. the Cornpan> sus- pended Ilene Kamperda on November 22 and discharged her by a letter dated November 30, which she received on December 1. Her suspension and discharge will be taken up under the next heading of this Decision. As indicated, the present charge was filed on December 16. The settlement agreement provided, in sum, tOr reinstatement and backpay for employee John Wert (who was a witness in the present hearing) and for backpa) to another employee who had been reinstated. and further provided that the ('ompany would not engage in discriminator\ layoffs and certain other specified unlawful conduct. I lowever, the agreement did not specifically refer to discriminatory suspension or discharge, and did not contain an omnihbus clause. The set- tlement further provided that eidence concerning the sub- ject matter of the charges could he introduced at the hear- ing on objections to the election, insofar as such e idence was relevant and material to the objections. On December 14 the Regional Director ordered a hear- ing on the Union's objections. and such hearing was con- ducted hefbre a hearing officer on January 10 and I I. The hearing officer issued his report on February 23. He recom- mended that the election be set aside because of employer misconduct. The hearing officer found, inter aia. that dur- ing the election campaign, the Company through its offi- cials and/or supervisors threatened employees with plant closure if the Union won the election, threatened employees with discharge because of union or other protected con- certed activities. interrogated employees about their atti- tude toward the Union. and announced an overli broad rule against union solicitation. On March 2 the Compan waived filing of exceptions to the hearing officers report and consented to a second election. On March 10 the Board issued a Decision and Order adopting the hearing officer's report, setting aside the election of September 16. and di- recting a second election. Processing of a second election remains blocked by the present unfair labor practice charges. The Board's findings in Case 7 RC 14422 include, as indicated, findings of misconduct which would also con- stitute employer unfair labor practices under Section 8(a)( I) of the Act. The Board's Decision is res judicalat of the mat- ters considered and decided by the hearing officer. which may be considered as evidence of company animuls toward the Union in the present case. Best Produclts (otnpln,. It.., 236 NLRB 1024 (1978). B. Alleged Interrogation, Su.spension ltand Discharge o lierle Karnpcerda I. Timeliness of the charge The Company contends that the charge in Case 7 CA 14698(2). i.e.. the Kamperda case. should be dismissed he- cause it in olves conduct which occurred pi llt i to ccctitll of the settlement agreement approxed onl I)ctelmbhr 12 ('Case 7 A 14163 (). etc.). he ('ompan conllend thait the Kamperda matter was readili disco erablc b the General ('ounsel prior to l)ecember 12. and thcrethl calln- not now be litigated. lowever. it is undiputed that the Board's Regional ()ffice had no knox ledgc of the Kant- perda matter until the present charge was tiled on l)eceil- her 16. It is also undisputed that the Union. the ( harging Parts in all cases. had no knowledge that Kanmperda as suspended or discharged until its International representl- tive, James Glenn, responded to a message to contact Kami- perda, and that he did so on the evening of )ecember 12 or on the next da. A\ccording to Kamperda's testimonl. the ('ompany did not originally gie a reason for her suspern- sion. I'he ('ompani's discharge letter Stated that she vs.is being terminated iOr "oxer-reporting''." K;iperda was nei- ther expressly nor implicitly inolxed in the settled case. TherelOre. regardless of' hether Kamnperda herself xxas diligent in this matter. it is dillicult to see hoss the matter was "readi h discoveraleh b( General Counsel on or he- l'ore [)eceibher 12. As (;eneral ('ounsel had no knolcedgc of the Karnperda m;atter prior to approx a] of' the settlement agreement. the settlement does not preclude litigation of her case. l.aminit Ptis if/g. (., 238 NI RB 8S8 (1978)1. 2. The merits a. Kamttperdtiz' l['ge'd iit'l (tit tivv The complaint alleges that the ('ompaln suspended Kamperda on November 22 and discharged her on Decem- hber I becaluse of her support of the lnion." The 'onm- pany asserts that it terminated Kamperda hecatse sie U.as overreporting her production count: i.e. hecause she re- ported more production than she actually performled. The C(ompanx hired Ka;mperda on Jul, 21 and she began working the next day. Kamperda's regular job suas that o a "zig-zag" sewing machine operator on the "pre-it" line. \t the time she began work the I nion's organizlational can- paign was unlderwa. and the Union had just iled its elec- tion petition. Kamperda's daughter. Jeri L-nn l nderhill. was also an employece. ULnderhill began orking or the Company on January 6. 1976. and orked in the fitting department. On September 5 Underhill transterired lronl the night shift to the da; shift and thereafter she ,xorked in close proximity to her mother. (The fitting department pro- duction line \was located in the same room as the prefit line). tinderhill activels supported the Union. and her testimon, indicates that such support as known to the ('omnpan! long before Kamperda's discharge. tinderhill x\\as a menm- ber of the Union's organizing committee. She passed out union cards to employ ees on the night shift. talked in fax or of the Union to employees in the shop. passed out unlioin buttons. and openly associated with Union Internalional Representative James Glenn. ho was the principal outside organizer involved in the campaign. Underhill testified that she wore a "Yes" T-shirt to ork. and that on the da\ of the election (September 16). Company Industrial Relations Manager Harold Bailes saw her shirt and said. "Oh no." Underhill also testified for the Union at the hearing on oh- 42 D[)('ISIONS ()t NA'II()NAI. IAB()R RATIONS BOARI) jectlions. concerning speeches b companyi oicials she coln- tinued to work for the ('Company until June 14 when she voluntarily quit her job. iGeneral ('ounsel does not contend. nor is there any evidence, that the ('ompany ever threat- ened Underhill with reprisal or engaged in any reprisal against her because of her union activity. In contrast to her daughter. Ilene Kamperda. to quote her own testimony. did "absolutely nothing" for the Union before the election. After the election. her union activity. it it can be called that, consisted of tagging along behind her daughter. In fact, there was relatively little union activity after the election. Such activity substantially consisted of keeping the employees informed concerning the pending objections. Kamperda and U)nderhill testified, in sum. that alter the election, they and several women in the prefit and fitting departments would get together at their midmorning or lunch break at a bench which was located near the pro- duction floor. They did not actively speak for or solicit sup- port for the Union: however, they would sometimes talk about whether there would be another election. There is no evidence that Kamperda took a leading role in these con- versations. Indeed, such is unlikely in view of her lack of involvement in the campaign. Underhill and Kamperda tes- tified. in sum, that on one occasion in October. Plant Man- ager Arnold Bott apparently overheard some of such a con- versation. Underhill testified that Bott smiled and walked away. Kamperda testified that he made a comment and walked away. Bott testified that he never overheard or tried to overhear such a conversation after the election. In fact, there were probably many such conversations among the nearly 400 employees at the plant. The matter is irrelevant to Kamperda's suspension and discharge, because Bott did not even know Kamperda by face until he suspended her on November 22. 'The prefit department supervisor, Larry Davis, learned that Kamperda was Underhill's mother when Underhill came on the day shift on September 5. Therefore, if the Company wanted to get at Underhill by discharging her mother, no further information would have been needed. Jeri Underhill testified that Judy Bearden. to- gether with five or more other employees, also regularly participated in these breaktime discussions about the Union. Kamperda and Bearden were the two regular zig- zag machine operators on the prefit line. If. as contended by General Counsel and the Union, the Company discrimina- torily selected Kamperda for discharge on the pretextual ground that she overreported her production, then it is dif- ficult to see why the Company did use the same pretext to discharge Bearden instead of or in addition to Kamperda. as both reported high production (see union brief). Kamperda and Underhill testified that one day after work they went to a union meeting at the Town Crier, a newspaper office on Main Street in Ithaca. (According to Kamperda. this was one of two union meetings which she attended at the Town Crier prior to her discharge.). Kam- perda and Underhill testified that, as they were about to enter the Town Crier building, they saw Industrial Rela- tions Manager Bailey looking at Kamperda from the front window of the Little Red Shoe House, a retail outlet for Hush Puppy shoes which is located next door to the Town Crier. Kamperda testified that the incident took place in November. Underhill testified that it Asas in October.' In fict. there were two union meetings in October. but none in November. There is no evidence that Kamperda played a significant role in these meetings. or for that matter, that she participated at all. Although International Representa- tive Glenn was presented as a witness for General Counsel. he did not testify concerning her presence at any union meeting, or as to any other union activity on her part. Har- old Bailey testified that he never saw Kamperda in front of the Town Crier, and that although he frequently went to the l.ittle Red Shoe House. he never went there to observe employees. Bailey had ample and legitimate reason to fre- quently be at the Little Red Shoe House. His wife managed the store, and he would go there in the late afternoon to pick her up. Bailey also had to conduct business at the store. which was a company outlet. Assuming that Bailey saw or apparently saw Kamperd& in front ofl the Town Crier one day in Octobher. it is difficult to see how any sig- nificance could be attached to the matter. As Bailey knew that Jeri Underhill actively supported the Union. it could hardly have come as a surprise to him that her mother would accompany her to a union meeting. Assuming that Bailey knew that there was a union meeting at the Town (rier (which assumption. in the absence of other evidence, would have to be based on Kamperda's version of her sus- pension interview), it is probable that Bailey must have seen other employees entering the Town Crier. However, General Counsel does not allege that the C'ompany engaged in reprisals against anyone other than Kamperda. Kamperda further testified that in the fall of 1977, she was approached at her machine by a slim, very tall man. apparently in his 40's, who had a Boston accent and who was not regularly at the plant, but who had been introduced (among others) to the employees by Company Vice Pres- ident Robert Wolfe at a meeting in the plant lunchroom during the election campaign. According to Kamperda, the man said she was very fast. and she complained about changing styles and about being switched to different jobs when she exceeded the production standard for a particular job: i.e.. thereby being deprived of an opportunity to earn a pay raise. In response to a leading question from General C(ounsel. Kamperda testified that she told the man that they certainly needed a union, whereupon the man allegedly re- plied that the Union was all done and over with. No such person was produced or more specifically identified by any party. Plant Manager Bott testified that it was not unusual for company executives from Rockford. including engi- neers, to tour the plant. but that no such official reported to him on union activity during September. October, or No- vember. 1977. As the Board's Regional Office thoroughly investigated captive audience speeches during the campaign in connection with the Union's objections to the election, it is unlikely that the tall stranger could not have been better identified, if in fact the alleged conversation took place as testified to by Kamperda. There is also no evidence that the mysterious stranger even knew Kamperda's identity. I find This hearing was conducted under the rule of exclusion of witnesses. Kamperda. International Representative Glenn. and Plant Manager Bott were the only witnesses permitted to remain throughout the hearing. 428 that KalIperda's testilonl , a;ountlls to tlothing m)orc thal self-serving. unreliable hearsas. h. t'aile'rdl' sVlcsion allld djsilri.T' In the early afternoon of Tuesda's. November 22. the pre- fit department fireman. Larry [)avis. summoned Kam- perda to Industrial Relationis Manager Bailey's olticc. At the time, Kamperda was scheduled to appear in court it 2 p.m. as the complaining witness in a criminal matter. Kam- perda testified concerning the ensuing interview. According to Kamperda. Davis left her alone with Bailex and Plant Manager Bott in Bailey's office. Kamperda testified that Bott said that she had gotten herself in serious trouble. Kamperda asked what kind. Bott asked how man'y times she had been down to the Town Crier. She said two times. Bott replied. -"YJou know this is serious." Kamperda an- swered that she wanted to know when there would be an- other election. Bott responded that the Union was all done with, and asked why she was dissatisfied. Kamperda an- swered that the Company kept switching her to other ma- chines whenever she achieved 100 percent of' production standard. Kamperda testified that at this point Supervisor Davis stepped in and said that he had put in Kamperda for a raise, and the raise was approved. Kamperda said that she had to leave for court. In response to a leading question from General Counsel, Kamperda testified that Bott told her that "Jeri has got quite a bit of trouble and problems with the Union." Kamperda then testified that Davis handed her a paper with her name and a date on it, and told her to sign it. She testified that she refused to sign it because the paper was blank. However. Kamperda promptly modified her testimony. She testified that she was unable to read the paper because whe was not wearing her glasses at the time. but that she did read that she was "sus- pended until further investigation." Kamperda testified that she asked "investigating what," and was told only that she was suspended until further investigation. Kamperda fur- ther testified that Bott refused to let her leave unless she signed the paper, and so she did. Bott said he would mail her a copy. Kamperda testified that nothing was said in this interview about overreporting. Kamperda further testified that as she left Bailey's office, she asked Larry Davis why he didn't tell her, and he answered that he was sorry. but that he had nothing to do with it. Plant Manager Bott gave a substantially different version of the suspension interview, and his testimony was substan- tially corroborated by that of Davis and Bailey. who were also presented as company witnesses. Bott testified, in sum, that the interview was the culmination of an investigation as the result of which he concluded that Kamperda was consistently overreporting her actual production. He de- cided to suspend Kamperda. pending confirmation of the results of the investigation, and Supervisor Davis agreed. Kamperda was then summoned to the interview. Davis and Bailey were present throughout the interview. Bott pro- duced records of daily checks which were run on Kam- perda during the period from November 14 through No- vember 22. and which purported to indicate that she was reporting substantially more production then she actually achieved. Bott showed some of the records to Kamperda. WI.Vlt:RINRI WOR.I) WlIl)l. INC. lie told her that this was serious, that it constituted stealing from the ('ompany (i.e.. in the form of uinwarranted wage increales),i and that he would have to suspend hr. Bott testiftied that Kamperda was upset and he again explained to her that she had been overreporting. According to Bott, Kamlperda simply said that she could not understand how she could do it. Kamperda did not deny overreporting her production nor did she offer any explanation ifor the appar- ent overreporting. Bott handed her a written document. captioned "Employee Warning Notice," signed by I)asis and Bott. which indicated, in sum, that she was being sus- pended fIor overreporting. Kamperda signed the notice. which was presented in evidence at this hearing. Bott cate- gorically denied that there was any discussion of the Town (Crier, Jeri Underhill, the Union, or union meetings. In ad- dition to corroborating Bott's testimony, [)Davis denied tell- ing Kamperda that he had nothing to do with it. In act,. Davis personally wrote up the warning notice. I credit the testimony of Boltt. )a is, and Bailey, and consequently. i as will be discussed, I also credit Bott's testi- mony concerning further conversations with Kamperda af- ter her suspension. herefore. I further find that the (om- pani did not interrogate Kamperda concerning her union activity. First, as indicated, this hearing was conducted un- der the rule of' exclusion of witnesses. It is unlikely that Baile 5 and Davis would have so accurately corroboraled Bott if as indicated by Kamperda. the true version of the suspension interview were so different from that of Bott. In particular, it is unlikely that Davis would have been able to corroborate Bott if Davis was not even present at the inter- view. It is evident that 1)avis and Bailey were testifying from their recollectiotn of the event. and not trying to parrot a false version of the interview. Second, it is unlikely that Davis would hase notified Kamperda of her pay raise at the time of the suspension. because Kamlperda actually re- ceived the raise in early November. Third. Kamperda's ver- sion is inferentially contradicted by the warning notice which she signed. The words "will be suspended for further investigation" which in substance Kamperda admitted reading on the paper. was a continuation, in Davis' hand- writing, of a statement of the asserted reason for her sus- pension. namely. oerreporting. 4 If Kamperda read the last line of the warning notice. then it is reasonable to infer that she read or was told about the balance of the notice. Fourth. as indicated. Kamperda did not engage in any union activity which would likely have attracted the Com- pany's attention. and the Company had known for more than 2 months that Underhill was an active union adherent. Therefore. Kamperda's version of the interview is some- what improbable. Finally, Kamperda generally did not im- press me as a credible witness. She was garrulous on direct examination, hut tended to be evasive on cross-examina- tion. demonstrating a reluctance to answer even the most elementary questions until she had an opportunity to pon- 4The text of he warning notice read as follows: This employee has been running a real high performance on her job and this is a count operation which has showed that we have moed more work to the other department than we aciually did. I have checked her four dass in a row and she has over reported each da). She will be suspended lilr further investigation. 429 I)E.(ISI()NS ()1: NA I IONAI. IABOR RELA I IONS BOARI) der their significance. In contrast. I have no comparable reservations with respect to the testimony oL' the o('ompatny's principal witnesses. The next day (Wednesday November 23), Kamperda re- turned to the plant to pick up her paycheck. She spoke to Plant Manager Bott. I credit Bott's testimony concerning their conversation. Kamperda asked how long the suspen- sion would last. and Bott answered that it would not be long. that he wanted to be sure he was right. Kamperda expressed concern that she could have overreported. Bott again explained that she wrote down more production than she actually performed. Kamperda asked if Botl would per- sonally run a check on her. Bott declined, but indicated that he would consider her request. Kamperda did not ask to see the Company's records. or offer any explanation lor the apparent overreporting, other than to say that she was un- der stress because of problems at home. T'here was no dis- cussion of the Union, union activities, or Jeri Underhill.' On November 30, Bott sent a letter to Kamperda which she received on December I. The letter stated that ")ue to the investigation we did regarding the over-reporting we feel we have no alternative but to separate you from the Company as of November 30. 1977." Upon receiving the letter. Kamperda telephoned Bott. I credit Bott's version of their conversation. Kamperda confirmed that she was dis- charged, asked about unemployment compensation, and was told to check with the Michigan Employment Security Commission (MESC).6 Kamperda gave no excuse for the apparent overreporting. She offered to demonstrate her ability to produce at 100 percent of standard, but Bott told her that this was not the problem, that it was overreporting. To summarize at this point, the credible evidence indi- cates: that Kamperda did not engage in any union activity which would have warranted the Company's attention, even if the Company was discriminatorily motivated: that the Company had long known of Underhill's union activity, but took no action against her: that Kamperda was sus- pended and discharged at a time when union activity was virtually dormant, and had been for some time: that the Company told Kamperda that he was suspended for overreporting, and repeatedly explained the charge to her, but she offered no excuse or explanation; and that Kam- perda's alleged union activity was never discussed. In light of these facts, General Counsel's case is for all practical purposes reduced from the level of an unfair labor practice case to that of a grievance proceeding: i.e., whether the Company had good or just cause to suspend and discharge Kamperda for overreporting. However, as a pretext may be evidence of a discriminatory motive, I shall next address myself to the question of whether, in the circumstances of According to Kamperda. Bott still refused to give a reason for her sus- pension, other than to ask why she did not put down on her job application that Jeri Underhill was her daughter. As I have credited the (ompan)'s testimony that she was told that she las being suspended for overreporting. it follows that I also do not credit Kamperda's version of the November 23 conversation. 6 Kamperda filed a claim for unemployment compensation on December 7. stating that she had been terminated ior overreporting. However. it i not clear whether Kamperda was referring to the (Company's sated reason or to her own understanding as to why she was discharged. Therefore. I do not regard her statement to MES(' as an admission against interest this case, the ('ompany's stated reason for terminating Kamiperda i.e. overreporting, was demonstrably pretextual. I find. upon consideration of the evidence. that the Com- pany had good cause to believe that Kamperda was engag- ing in flagrant, deliberate. and serious oerreporting of her production, that it handled the matter in a reasonable and cautious manner which did not evidence a desire to punish Kamperda tfor any other reason, and that the C(ompany's actions were not out of proportion to the offense or demon- strably inconsistent with any general or usual practice. T'herefore, the evidence indicates that the Company did not terminate Kamperda for a pretextual reason, and it is un- necessary for me to determine whether the Company had good or just causeI to discharge Kamperda, as measured by the standards applicable to collective-bargaining contracts. By Noveimber 1977. Kamperda's apparent overreporting had become notorious. Judy Bearden, the other regular zig- zilg machine operator during the fall of 1977 testified that she thought it "silly" or "uLLnusual"' that Kamperda's pro- duction was higher than hers, as Bearden had been working for the Company for 2 or 3 years, and Kamperda for less than 4 months. Bearden was mollified when Kamperda told her that she had experience operating sewing machines. However, all-around girl Lianne Loomis had more direct reason to question the veracity of Kamperda's daily pro- duction reports. Loomis functioned as an assistant to Su- pervisor L[arry DIaxis. and was responsible, among other things, for checking employee production cards every 2 hours, in order to keep track of production. The employee operators who worked on production count jobs would rec- ord their daily production on an index card, which was turned into the supervisor at the end of the day. The em- ployee would make a hashmark on her production card for each completed case (six pairs) of shoes, and indicate the hashmarks by hour and by style of shoe. Loomis suspected Kamperda when she noticed on her rounds that Kamperda added hashmarks to her previous hourly counts. At first Loomis said nothing, but eventually she told trainer Naomi Perry of her suspicions. Perry. who was responsible for training and monitoring the performance of new employ- ees, had similar suspicions. Perry had observed Kamperda and noticed on the basis of I hour's observation, that Kam- perda recorded more production than she actually per- formed. Loomis further checked her figures with those of Kamperda and found that they differed, and Perry reported their suspicions to Supervisor Davis. Davis who thought well of Kamperda (as Kamperda did of him) took no action at this time. However, in late October, the Company was forced to send the fitting department line home early on two successive Fridays because of lack of work. This was caused by the fact that the fitting department was receiving less work from the prefit line than was actually reported by the prefit line. The occurrence of these incidents is undis- puted. Plant Manager Bott complained to Supervisor Da- vis, who recalled the complaints about Kamperda. Davis kept track of' Kamperda's records and production, and in November reported to Bott that he suspected that she was overreporting her production. Bott then directed that Davis run a check on Kamperda by having the prefit line console operator keep track olf material sent to Kamperda. Linda Shong was the console operator. and she was responsible for supplying the prefit line operators with shoes to be 430 WOI.VE RIN WO()RI.D Wl)DE. IN(C worked. Shong kept count for I week. and I.oomis checked her figures for I week against Kamperda's reported produc- tion. The results, which were submitted to Bott. confirmed that Kamperda was regularly and substantially overreport- ing her production. Kamperda was then suinmoned to the suspension interview. The foregoing is a composite of' the testimony of Plant Manager Bott, Prefit Foreman Davis all-around girl Lianne Loomis, trainer Naomi Perry. console operator Linda Shong, and former employee and zigzag operator Judy Bearden, all of whom were presented as witnesses for the Company. They include both supervisors and rank- and-file personnel. Shong is a nonsupervisor employee, and Bearden is a former employee. I.oomis' duties indicate that she is at most a low-level supervisor, with limited su- pervisory responsibility. Shong lives in the same small com- munity as Kamperda and Underhill, and most of the others live in the same semirural area. I find it unlikely that the would he unifirmly motivated to lie agailst Kamperda. I do not regard the omission of certain facts in the investiga- tory affidavits of Bott and Davis as constitutinCg a basis for discrediting all of these witnesses. Bott in his affidavit did not deny telling Davis to run a check, and Davis in his affidavit did not deny that ILoomis reported that Kamiperda appeared to he altering her hourly count. Therefol're, the failure of each affidavit to include these faclts alnlon m;lans others is insufficient to impeach their testimonl. Indeed. Kamperda came close to admitting thlat she h;ad in fact engaged in overreporting her production. ()n presen- tation of General ('ounsel's affirmative case. Kamperda neither admitted nor denied that she overreported her pro- duction. Rather, she testified that d; after davy and hour after hour" she would walk to the console, get her own material. and carrs it back to her machine. rather thain ail for the console operator to send the material down the con- veyor line. 'he suggested intference was that this habit ac- counted for the apparent discrepancy in production figures. However. after listening to the parade of , itnesses agailnst her, Kamperda testified as a rehuttal witness. She testitied that trainer Perry once complained that she put dow n an extra hashmark, but was in error. and that this was the only time anyone spoke to her about possible overreporting. other than corrections of her mathematical errors by Super- visor Davis. However, in response to a question hb conm- pany counsel, she testified that she did not recall whether. on a couple of occasions, Lianne Loonmis came to her and said that Kamperda had more hashmarks than were counted by Loomis. If in fact Kamperda regularly obtained her own material, then Perry. Loomis, and Shong would have observed that practice and taken it into conlsideration when they were monitoring her production. Such alleged practice would not account for the additional hashmarks noted by Loomis. Moreover, I find it incredible. in light of the Company's assembly line system of production. that Kamperda would have improved her own production by personally getting her own material. If anything. she would have wasted valuable time by leaving her machine, walking down the long narrow aisle separating the prefit and fitting lines, sorting out her own material from the variety of items stored near the console, and carrying four boxes at a tinme back to her seat, rather than signaling the console operator to send her material down the convevor line. Kamperda had motive for inflating her production rec- ord. She knew or understood that employees who regularly exceeded the ('ompany's production standard were entitled to a wage increase, and in fact she received a wage increase in early November. In the fall of 1977 she had an infirmal contest with Judy Bearden to see who could produce the most. Kamperda's misconduct was flagrant, substantial, and apparentlN unprecedented. Prior instances of possible or actual overreporting involved mathematical errors, mis- understanding of the applicable standard, or isolated in- stances hich were not repeated. I credit Bott's explanation that Kamiperda's misconduct, which was known to other employees. required strong action if the Cornmpan was to muiintain the integrity of its honor system under hich e m- plosees recorded their owun production. Ihere was no rea- soin to investigate any other emplo ee because the ('om- pany alread had evidence that Kamiperda w as overreporting her production. Nevertheless the ( 'ompan! proceeded ca;itiouly. first running a check for I wseek, and then confronting Kamperd1a with the eidence and givpmg her an opportunit> to explain herself. No explanation \.ias forthcoming. It is unlikel, that the (Company wotlid have proceeded in such a cautiIous and scrupulousl fair llianner if it were determined to set an example hby discharging her because of her union activit'. In sum I find that KaImperda w;as suspended nll discharged because she o verrleported her prodLuctio n uand. therelore, that the ('omptlanl did nlot thereb? iotlate the Act. ( . Ii1t . 1/c d 'l 11,- 'hr, s Richard ()mniis orked in the lasting detpartnlit iIt tle Ilthlac;l plilnt. l c \i;is emploed bh the (Conipan Ifrom .lul 12, 177. until is dischaige ill .\igust 1 978.- Oranl;lns as i witness ior the n o1i0 at the hearing on11 ohections wllhicl wu;as conducted on .Ill In111ar;, It) ; 11. AI lhit hearir . ()mains testified in sui thIat Iiis illlmediate superv isor, Wil- linm laFrcniere ha;d threatened him ith discharge if he did not rllove il union button and threatened plant clo- sure il te I nioln gt in. It is undisputed. and the answer admits in lhis case. that at all times material I.aF'reniere was and is an agent of the Company and a supervisor of Ihe (ompan_ ilhin the meaning of Section 2( 11) of the Act. l.aFrenicre was not present at the hearing on objections and Omans' tstimonll was unrefuted. The hearing officer credited Omans and found that the Company. through .LaFreniere unlaw fully interfered with the conduct of the election. In the present proceeding O)mans testified aS to a conversation which took place shortly after the hearing offi- cer issued his report." Omans testified that L.aF:reniere ap- proached him at work, saving that he had got something in the mail concerning ()mans' testimony, and that he heard from others that Omrans had lied. LaFreniere said that be- 7 rejected Ihe (rmpans's anemlpl to present evidence colncerning the realson r O()man's dscharge His discharge is nol an issue in his .case, nd therelbre, it inlsl he presumed that he was lauii ll, ilerlrinlaleJ ()mOnailns tetilied lhal tie co i ers.altion oosk place aou 3 oir 4 seeks .itter Ihe heaCring ,lii ohlectlilons It hc,-cer the suhsilnle Ili' he colnsersatlln Indl- caes that II mtuis have laken pl;lace sh llt\ later the hearig offlicer issued his reporl I find thai ;s alleged in Ihe cmpllilnt. he conersa;t ion 'clrred in late I ehruar! 431 DE)IC (ISIONS OF NATIONAL LABOR RE IATIONS BOARD cause Omans lied, he (laFreniere) was going to get his law- yer and try to get Omans for perjury. ()mans answered that he told the truth. According to Omans, LaFreniere added that he was going to fire Omans because he was telling everyone else what happened, and it made LaFreniere look like an ass. Omans replied that LaFreniere was an ass. Ac- cording to Omans, LaFreniere also said that it was a good thing he did not find out earlier or he would have gotten Omans' ass. Omans testified that no other company official or supervisor talked to him about his testimony. and that LaFreniere never apologized for his remarks. l.aFreniere was not presented as a witness in this pro- ceeding. although he was still employed as a supervisor at the time of' this hearing. The C('ompany did not indicate that there was any reason why he could not be called as a wit- ness. The only testimony presented hby the Company con- cerning this matter consisted in sum, of teslimon hS Pla;nt Manager Bott that he was unaware of the conversation he- tween L.aFreniere and Omans until the present charge was filed, and that he took no disciplinary action Om;ans be- cause of his testimony. General Counsel presented the testi- mony of' employee John Wert, who testified that he over- heard part of a conversation between I.atFreniere a nd Omans about ebruary 28. Wert's version of what he hea;rd corrobhorated Omans in some respects and conltradicted him in others. Wert did not impress me as a reliable witness. lfe first testified thllt eFreniere started out by berating Otmans for his job production, but later asserted that L.eFreniere began by talking about the hearing. There was considerable noise tfrom machines at the time of the conversation, and LaFreniere had angrily addressed O()mans and other em- ployees on other occasions, including times when he criti- cized their job performa;nce. It may well be that Wert re- called portions of' other conversaltions. notwithstanding his assertion that he took notes concerning incidents at the plant. (Such notes were not presented at the hearing). If this matter involved a disputed version ot a conversation as be- tween Omans and l.aFreniere. or a denial by LaFreniere that the conversation took place, then Wert's testimony might take on added significance. Ilowever such is not the case. In view of the Company's failure to present a- Freniere as a witness. the inference is warranted, and I so find. that had LaFreniere been produced its a witness. he would not have contradicted Omans' testimony. Martin Lu- ther King,. Sr. Nursing Center, 231 NL.RB 15, f. I (19771. 1 credit Omans. Indeed, the Company does not dispute that the conversation took place. Rather, the Company's posi- tion, as stated in its briefl; "is that the incident involving Mr. Omans and Mr. LaFreniere was a result of personal pique on the part of LaFreniere and did not carry with it any overtones of employer knowledge or threats of' reprisal by the employer." I find that the Company. through LaFreniere. violated Section 8(a)( I) of the Act by threatening Omans with a lawsuit or criminal prosecution and other reprisal because of his testimony in support of the Union in a Board pro- ' In view of the hearing officer's report, the ('ompany was well aware that this would he a likely result of a second failure to produce LaFlreniere as a witness. Nevertheless, it chose nol to call LalFrenierr. ceeding," and by threatening him with discharge because he discussed his testimony with his fellow emplohyees. It is an unfair labor practice for an employer to threaten an employee with a lawsuit for libel or slander because he filed charges or gives testimony in a Board proceeding. (Ivle livlor, l/b/l (iC''e 7ili'lbr (onpa'w. 127 NI.RB 103. 108 (1960): see also Ra:Io, Inc.. libla JIil 'N Run tbod Slor s. 231 N RB 660, 675 (1977). As employee discussion of such testimony, like the testimony itself. constitutes activity pro- tected by Section 7 of the Act, it follows that an employer also violates Section 8(a)(l ) by threatening an employee with discharge or other reprisal because he engages in such discussion. I reject the ('ompanN's defense that it was not responsible for l.aFreniere's threats. 'l'he test in determin- ing whether an employer is responsible for coercive state- ments by a supervisor is not whether the statements were, in fact, within the scope o' the supervisor's enmploymnent, hut whether the employees have just cause to believe that the supervisor is acting for and on behalf o management in the sttuatlion under dispute. Under this test, the Board and the courts have held that, in the absence ol' special circum- stances, an emploscer is responsible for coercive statements and other conduct ot' ia supervisor, J. S. Abcrrnbihie ('onm- pan/', 83 NI,RB 524, 529 (1949). In the present case, la- Freniere addressed O()mans at his work station. I.al-ren:ere's threat oft a lawsuit or prosecution for perjury was couched in terms of' what he would do. However, this threat was coupled with a threat of' discharge, which could hardly be considered as a personal matter between l.al reniere and ()Orans. I.al:reniere's assertion that he would have gotten O()ans' ass it' he had learned earlier about ()mans' testi- ronl . tailed to distlinguish between personal action and joh-rel;lted reprisal. Moreover, the ( ompany War;s put on notice as of the hearing onl objhections on Januars 1 and I I. it' it did not klnow hefbre that time, that alaFreniere had threatened reprisals becauise o eploy ee union actisvity. Nevertheless, the idence ;ils t indicate that the C'om- pany took any steps to disavow such threats by l.alreniere (heytond the general commiittment contained in the unfair labor practice sttlillnt agreemenlt). or to instruct la- Freniere that he wts not to make such threats. ven ater the Union iled the present charge on March 2, the ('om- pany never informed Omans or his fellow employees that it repudialted l.aFreniere's threats. In these circumstailces, Omans and his fellow employees could reasonably believe that LaFreniere was speaking on behalf of the (ompany. I'herefore. the ('Company violated Section 8(a)( 1 ) of the Act. (CON( I SIONS OF) l.AWV 1. The ('ompany 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 interfering with, restraining, and coercing its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged. and is engaging in. unfair labor practices within the meaning of Section 8(a)( I ) of the Act. t" LaFrenicre's threat to get Omans ftr perjury was broad enough to en- compass either a civil suit or criminal prosecution. 432 WOI.VIRINI- W()I D) WIDE. IN(' 4. The (ompany did not violate the Act hb suspending and terminating Ilene Kamperda. 5. The aforesaid unlair labor practices are unfair labor practices affecting commerce within the nieanilng of Section 2(6) and (7) of the Act. [i RI) I-aving found that the Company has commlitted iola- tions of Section 8(a)( 1I) of the Act I shall recommend that it he required to cease and desist therelrom and t post ap- propriate notices. I do not agree with the Compan,'s argu- ment that LaFreniere's threats constitute "an isolaled inci- dent which does not warrant a remedial order." In particular, a threat of discharge for engaging in protected activities is a serious matter "which goes to the ver, heart of the Act." Rockwell Internatioenal (orporatrion, 226 NRB 870. fn. 2 (1976). In view of the C(ompans's demonstrated proclivity to violate the Act. which proclivits extends to other plants. and the fact that prior Board Orders and a court decree have filled to deter such unlawful conduct I am recommending that (I) the ('omppan he ordered (s it has been before) to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. and (2) that the Companv he directed to post appropriate notices at its principal offices in Rockford. Michigan, and at all of its plants in the State of Michigan. See J. P. Sltcie & Co., Inc.. 220 NRB 270 (1975). Upon the foregoing findings of act and conclusions of law, and upon the entire record. and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDL R" The Respondent, Wolverine World Wide, Inc.. Rockford, Michigan, its officers agents, successors, and assigns, shall: 1 In the event no exceptions are filed as provided bh Sec 102.46 of Ihe Rules and Regulations of the National l.abor Relations Board. the findings, conclusions, and recommended Order herein shall. as plosided in Sec. 102.48 of the Rules and Regulalions. be adopted h the Board and hecome is findings, conclusions and Order. and all ohjections thereto shall he deemed waived for all purposes. . ('ease and desist from: (a) lIhreatening employees with lawsuits, criminal pros- ecution, or other reprisal because thes give testimons in a Board proceeding. (hb) 'Ih realening emplo ees with discharge or other repri- sal because thes discuss suc h testimon\ with their fellow eiployes. (c) In ;nyi other m;llnner interfering with, restraining, or coercing elmployees in the exercise of their rights to orga- nizec to firin, join, or assist lahor organizations: to hargain collectixel\ through representatives of their o n choosing: to engage in concerted activities fr the purpose of collec- ltie bargaining or other mutual aid or protection or to refrain rom an', and all such actisities. 2. Take the follo 'ing affirmati e action which is found necessar\ to eflecluale the policies of the Act: (a} Post at its offices illn Rocklfrd. Michigan. and at each ofl its plants in the State of Michigan. including its plant at Ithaca. Michigan, copies o' the a;ttached notice marked "Appendix."': ('opies of' said notice. on firms prosided bh the Regional D)irector or Region 7. af'ter being du signed hb Respondent's authorized representative, shall be posted bh Respondent immediatek upon receipt thereof:;and he maintained bh it li'r 60 consecutie, da s thereafter, in con- spicuoUS places including all places where notices to em- ployees are cuslomiaril, posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by anN other material. (hlb Notify the Regional Director for Region 7. in writ- ing. within 20 da's from the date of this Order, v hat steps Respondent has taken to comply herewith. II I IR III-R RI:( )MMINI)I I) that the allegations of the complaint with respect to interrogation and to the suspen- sion and discharge of Ilene Kamperda are dismissed. c In the esen l hal this Order ie nircC d hb a judgment o, a [niled States Court AI Appeals. the v ords In he notice reading "Posted b Order ,o the Na;ltinall I abor R clil ns Board" shall read "Posted Pursualnl o a Judgment of' the nited Stlate ( lrt of' Appeals nlfircing an Order of the Nailonal L.abor Relaiins Boardi" 433