Lakepark Industries, Inc

452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Lakepark Industries, Inc and International Union, Allied Industrial Workers of America, AFL- CIO Cases 8-CA-20195 and 8-CA-20618 March 28, 1989 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On June 14, 1988, Administrative Law Judge Walter H Maloney issued the attached decision The Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and a supporting brief The National Labor Relations Board has delegat- ed 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 decided to affirm the judge's rulings, findings, I and conclusions2 as modified and to adopt the recom mended Order as modified and set out in full below 3 I The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings We are also satisfied that the Respondents contention that the judge was biased is without ment Careful review of the record shows no state ments or other evidence indicating bias or prejudice on the part of the judge 2 The Respondent citing Hoyt Water Heater Co 282 NLRB 1348 (1987) contends that the judge erred in finding that it engaged in unlaw ful surveillance of a union meeting on April 1 1987 We find Hoyt distin guishable from the present case In Hoyt the panel majority found that the General Counsel failed to show that more than fortuitous circum stances brought the supervisors to drive past the premises In con trast here the judge found that Plant Manager Higgs and Plant Superm tendent Gearhart each drove slowly back and forth past the meeting in the elementary school parking lot and that Higgs later drove by the meeting again when it moved to another location The record shows that these drive bys were not merely fortuitous and supports the judges conclusion that this conduct amounted to unlawful surveillance Chair man Stephens in agreeing with his colleagues that the Respondent en gaged in unlawful surveillance on April 1 1987 notes that he dissented in Hoyt with respect to the dismissal of the surveillance allegation Member Cracraft who did not participate in Hoyt agrees it is distinguishable The complaint alleged that the Respondents assignment of union sup porters to the 881 job violated Sec 8(a)(1) and (3) We adopt the judge s finding that this conduct violated Sec 8(a)(1) No exceptions were filed to the judge s failure to find this conduct violated Sec 8(a)(3) In the ab sence of such exceptions we adopt pro forma the judge s failure to find that this conduct also violated Sec 8(a)(3) 3 The judge inadvertently omitted from his Conclusions of Law rec ommended Order and notice language reflecting his finding that the Re spondent violated Sec 8(a)(1) by threatening to close the plant in the event of unionization We shall amend the conclusions of law and modify the recommended Order and notice accordingly In his recommended Order the judge provided that the employees un lawfully laid off be offered reinstatement to their former or substantially equivalent employment We shall modify the Order and notice to pro vide that the Respondent offer the employees substantially equivalent employment only if their former jobs no longer exist The judge s recom mended Order also included an expunction remedy for Charles Wolfen The judge found, inter alia, that the Respondent violated Section 8(a)(3) and (1) of the Act by dis- criminatorily laying off 31 employees on April 1, 1987, and by discriminatorily discharging Charles Wolfenbarger on December 4, 1987 The determi- nation of whether these actions violated the Act is governed by the standard set out in Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir 1981), cert denied 455 U S 989 (1982), approved in NLRB v Transportation Management Corp, 462 U S 393 (1983) Under Wright Line, the General Counsel has the initial burden to prove that union or other activity protected by the Act was a moti vating factor behind the discharge The burden then shifts to the employer to show that it would have taken the same action even in the absence of the protected activity Regarding the layoff, we conclude that, given the judge's finding of a back- ground of antiunion animus on the part of the Re- spondent, the timing of the layoff 2 days after the Union sent the Respondent a telegram informing it that the Union was organizing the LPI plant, and the Respondent's knowledge of the Union's orga nizing effort, the General Counsel met her initial burden to show that union activity was a motivat- ing factor in the layoff 4 Regarding its rebuttal, the Respondent contends in its exceptions that the judge ignored its stated reason for the layoff It argues that the judge erro neously characterized its claim as one based on "economic necessity" and that he failed to analyze its stated reason for the layoff, which "centered on product quality and workforce stability " Although the judge did not explicitly address the Respond- ent s product quality and workforce stability' ar- gument in those terms , it is clear from his decision that he discredited any reason for the layoff other than a union-related one In this regard, the judge credited the testimony of former Assistant Plant Manager John Drossman, who testified that when he asked Plant Manager Larry Higgs why the Company was laying off employees, Higgs told him that the Company wanted to see if a loss of jobs would have an impact on the union organizing effort The judge further credited the testimony by Drossman that showed that Higgs had told him that the employees should be told that the layoff was permanent because temporarily laid off em ployees could vote in a representation election In addition, the judge discredited the testimony of Higgs and Midway's corporate manufacturing man barger but not for the other employees who were unlawfully laid off We shall modify the recommended Order and notice to include those em ployees in the expunction remedy 4 See Transportation Management Corp 256 NLRB 101 (1981) enf denied 674 F 2d 130 (1st Cir 1982) revd 462 U S 393 (1983) 293 NLRB No 52 LAKEPARK INDUSTRIES ager, Jerry Graham, which the Respondent offered as part of its "product quality" argument, that the layoff had been long in the making, noting that the Respondent kept hiring new employees virtually up to the date the Union informed it of the organizing campaign There is considerable persuasive evidence that the layoff was not motivated by a desire to im- prove product quality Quality problems had exist- ed at the Lakepark plant from the time it opened in 1985 Nevertheless, there had never been layoffs there before, and the Respondent offered no reason why it decided to address the asserted quality problem with layoffs at this particular time Also, although the plant's quality problems involved par- ticular departments or classifications of employees, most of the employees in those departments and classifications were not laid off Similarly, the fact that the Respondent chose a seniority-based layoff, rather than selecting employees for layoff on the basis of ability, belies the claim that the layoff was designed to improve product quality Finally, the Respondent has provided no explanation why, given its assertion that quality problems prompted the layoff of these 31 employees, it chose in the fall of 1987 to recall all these laid-off employees, rather than hiring new workers to meet its needs Thus, we find that the Respondent has failed to rebut the General Counsel's prima facie case, and we agree with the judge's conclusion that the layoff violated the Act 5 Regarding the discharge of Charles Wolfen- barger, we find that the General Counsel estab- lished a prima facie showing of discrimination based on the judge's findings that the Respondent had antiunion animus, had been informed by the Union that Wolfenbarger was a union supporter, and had previously threatened Wolfenbarger with reprisal for union activities We also find that the Respondent failed to meet its Wright Line burden in light of the judge's findings that the Respondent offered shifting reasons for the discharge and did not establish that it had a nondiscriminatory reason for discharging Wolfenbarger 6 Accordingly, we 5 We find merit in the General Counsels contention that the judge in advertently misidentified certain of the 31 employees who had been laid off on April 1 1987 We shall modify the judge s recommended Order accordingly 6 With respect to the shifting reasons finding the Respondent contends that it did in effect list creating a safety hazard as one of the reasons for Wolfenbarger s discharge because his failure to follow work instructions (a listed reason) created a safety hazard Even if we found that this con tendon had merit we would still agree with the judge that this was not the true reason for the discharge The conduct in question i e the slug puncher incident was not shown to involve a saftey hazard different in degree from others (e g miss hits dry runs various failures to notify su pervisors) for which employees had not been discharged We would therefore still find that the Respondent had failed to carry its Wright Line burden 453 agree with the judge's conclusion that Wolfen- barger's discharge violated the Act 7 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 4 "4 By the acts and conduct set forth in Conclu- sion of Law 3, by threatening employees with dis- charge or other unnamed reprisals if they engaged in lawful union solicitation on company premises, by engaging in surveillance of the union activities of its employees, by threatening employees with plant closure in the event of unionization, and by assigning more onerous work to employees in re- prisal for their sympathies with or activities on behalf of the Union, the Respondent violated Sec tion 8(a)(1) of the Act " ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Lakepark Industries, Inc, Greenwich, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modi- fied 1 Insert the following as new paragraph 1(d) and reletter the subsequent paragraphs accordingly "(d) Threatening employees with plant closure in the event of unionization " 2 Substitute the following for paragraph 2(a) "(a) Offer to each of the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre viously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them, in the manner set forth in the remedy section of the decision Calloway Jones Jackie Dewitt David Mathias Hayden Stephens Rick Brant Joe Mack Jim Artz Tom Perkins Kerry Hale Nick Kollar Mike Stockmaster Hillard Branham Saul Chavez Doug Mullins Tim Stumbo Robert Clark In so doing however we do not rely on the judge s statements that Wolfenbarger was a marked man from the time he returned to the LPI plant that an incident in which Wolfenbarger received a written warn mg for leaving his work station was an essentially trivial event that Wolfenbarger should be reinstated regardless of whether or not the De cember 4 1987 discharge is deemed unlawful and that [e]ven if a safety violation were made out by the facts of this case no one had ever been discharged for such a violation before 454 Chris Green Angie Lacey David Arthur Teresa Hale Richard Haas Eddie Campbell Wayne Breitigan Kevin Archer" DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Michael Mills Charles Wolfenbarger Arvel Buffington Freddie Tuttle Rod Williams Jeff Van Meter Dale Wilson 3 Insert the following as new paragraph 2(b) "(b) Expunge from the personnel records of Charles Wolfenbarger and each of the employees unlawfully laid off on April 1, 1987, any entries that reflect the discriminatory treatment found, and notify the employees in writing that this has been done and that those entries will not be used against them in any way " 4 Substitute the attached notice for that of the administrative law judge APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated 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 representa tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT engage in surveillance of the union activities of our employees WE WILL NOT assign more onerous work to em- ployees in reprisal for their union activities WE WILL NOT threaten employees with dis- charge or other unnamed reprisals for engaging in lawful union solicitation on company premises WE WILL NOT threaten employees with plant closure in the event of unionization WE WILL NOT discourage membership in or ac- tivities on behalf of International Union, Allied In- dustrial Workers of America, AFL-CIO or any other labor organization by laying off or discharg ing employees or by otherwise discriminating against them in their hire or tenure WE WILL NOT in any other manner or by any other means interfere with, restrain, or coerce em ployees in the exercise of rights guaranteed to them by Section 7 of the National Labor Relations Act WE WILL offer to each of the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges pre viously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharge, less any net interim earnings, plus interest Calloway Jones Kerry Hale Jackie Dewitt Nick Kollar David Mathias Mike Stockmaster Hayden Stephens Hillard Branham Rick Brant Saul Chavez Joe Mack Doug Mullins Jim Artz Tim Stumbo Tom Perkins Robert Clark Chris Green Michael Mills Angie Lacey Charles Wolfenbarger David Arthur Arvel Buffington Teresa Hale Freddie Tuttle Richard Haas Rod Williams Eddie Campbell Jeff Van Meter Wayne Breitigan Dale Wilson Kevin Archer WE WILL remove from our personnel files any entries that reflect the discriminatory treatment of Charles Wolfenbarger or the employees unlawfully laid off on April 1, 1987, and WE WILL notify the employees in writing that this has been done and that those entries will not be used against them in any way LAKEPARK INDUSTRIES, INC Steven D Wilson and Victoria Belfigho Esqs, for the General Counsel William L Hooth Esq of Troy, Michigan, for the Re spondent Joseph Szumski, International Representative, of Parma, Ohio for the Charging Party DECISION STATEMENT OF THE CASE WALTER H MALONEY, Administrative Law Judge This case came on for hearing before me at Ashland Ohio on an unfair labor practice complaint' issued by ' The principal docket entries in these cases are as follows Charge filed in Case 8-CA-10195 against the Respondent by Interns tional Union Allied Industrial Workers of America AFL-CIO (the Union) on June 26 1987 complaint issued against Respondent by the Regional Director for Region 8 on August 26 1987 and amended on No vember 13 1987 Respondent s answer filed on September 2 1987 first Continued LAKEPARK INDUSTRIES the Regional Director for Region 8 which alleges that Respondent Lakepark Industries, Inc 2 violated Section 8(a)(1) and (3) of the Act After a hearing on the original complaint in Case 8-CA-20195 had been completed, the General Counsel moved to consolidate Case 8-CA- 20618 with that case and to proceed to hearing on the allegations in the second complaint The motion was granted and a second hearing was held in the consolidat ed case FINDINGS OF FACT The two complaints allege that the Respondent threat ened employees with reprisal if they engaged in union solicitation on company time, kept union meetings under surveillance, engaged in following union adherents out side the plant, assigned more difficult and onerous work to union adherents, discriminatorily laid off 31 employees on April 1, 1987 and on December 4, 1987, discrimina torily discharged employee Charles Wolfenbarger The Respondent denies the commission of independent acts of 8(a)(1) conduct, claims that the 31 individuals who were laid off on April 1, 1987, were laid off for economic ne cessity, and asserts that Wolfenbarger was discharged for a series of on the job deficiencies, climaxing with the misuse of a stamping machine on December 4 1987 On these contentions the issues were framed 3 I THE UNFAIR LABOR PRACTICES ALLEGED Since August 1985, Respondent Lakepark Industries, Inc (LPI) has operated a pressing and stamping oper ation at Greenwich, a small town in northern Ohio near Cleveland LPI is a wholly owned subsidiary of Midway Products Inc (Midway), of Monroe Michigan Midway also owns P & A Industries (P & A), located at Findlay, Ohio All three of these plants are controlled from the Midway corporate headquarters at Monroe and are en gaged in similar operations, namely, the stamping of auto parts for the Ford Motor Company With small excep tion, Ford is their only customer Midway employees are organized in a union represented bargaining unit while the employees at Findlay and LPI are not The events at issue in this case relate to the LPI plant at Greenwich The bargaining unit at LPI is in large measure com posed of unskilled or semiskilled employees It has expe rienced a great turnover in the past 2 years A significant number of its new hires are individuals with little or no hearing held in Ashland Ohio on December 9 and 10 1987 charge filed by the Union against the Respondent in Case 8-CA -20618 on December 16 1987 complaint issued against the Respondent by the Regional Direc tor for Region 8 on January 20 1988 order consolidating Case 8-CA- 20195 with Case 8-CA-20618 issued by me on February 3 1988 second hearing held in Ashland Ohio on March 29 1988 briefs filed with me by the General Counsel and the Respondent on May 31 1988 2 The Respondent admits and I find that it is a Delaware corporation which maintains an office and place of business in Greenwich Ohio where it is engaged in the manufacture of automotive stampings and as semblies Annually the Respondent sells and ships directly from its Greenwich Ohio plant to points and places located outside the State of Ohio goods and merchandise valued in excess of $50 000 Accordingly it is an employer engaged in commerce within the meaning of Sec 2(2) (6) and (7) of the Act The Union is a labor organization within the meaning of Sec 2(5) of the Act S Certain errors in the transcript are noted and corrected 455 work experience who are employed pursuant to an on the job training agreement between LPI and a state agency known as the W S 0 S Community Action Com mission Inc Pursuant to this agreement, the commission agrees to pay LPI up to 50 percent of the hourly wage for a period of 600 hours of each new employee for whom coverage has been authorized The specified wage rate is $4 per hour for the employees first 360 hours of work and $4 25 per hour for the next 240 hours Ap proximately 40 percent of the LPI work force was being subsidized by this program Respondents announced per sonnel practice treats each new hire, whether or not he is covered by the state program, as a probationary em ployee for a period of 60 days and thereafter as a regular employee entitled to accrue seniority On April 1, 1987, the date on which the principal event in this case took place, the Respondent employed 68 production and maintenance employees in its Green wich bargaining unit On that date it indefinitely laid off 31 of these employees under circumstances that are here described According to former Assistant Plant Manager John L Drossman,4 rumors had floated about the plant early in 1987 that employees were considering unioniza tion 5 At that time he discussed with Plant Manager Larry Higgs what might be done to combat unionization One suggestion proffered by Higgs to Drossman in volved the annual bonus which was about to come due Higgs suggested that supervisors speak to employees on the plant floor and suggest to them that the Company was considering the possibility of forgoing payment of the bonus He stated that such a threat might put the damper on unionization Following Higgs suggestion Drossman spoke to three employees- Brian Rank, Larry Hargis, and Polly Copsey-at the scale in the plant and passed this word on to them Early in February Second Shift Supervisor Gene Beal had occasion to discuss unionization with hi lo operator Terry Shepherd Record evidence is uncontradicted that Beal told Shepherd the Company was building a new plant in Michigan and would relocate the LPI operation to that plant if a union ever came in Beal also told Shep herd that, if a union ever did come into the plant he would not mind dropping back to a production employ ee On March 25, Union International Representative Joseph Szumski met with employee Oscar Bennett to dis 4 Drossman was formerly assistant plant manager at Greenwich On re turning from vacation in mid April 1987 he received a telegram from LPI dated April 17 which informed him that he was being permanently laid off because the Company felt it necessary to reduce the number of its salaried personnel along with the reduction in the size of the production and maintenance force In fact Drossman was discharged for an assort ment of asserted reasons all of which were discussed in detail in the record in this case in an effort to impeach his testimony Shortly after he was fired Drossman filed a multimillion dollar wrongful discharge com plaint against both LPI and a number of LPI and Midway officials in the Court of Common Pleas of Huron County Ohio His civil action was pending at the time he testified in this proceeding I found Drossman to be an honest forthright witness and I believe his testimony although of forts were made to discredit him 6 Higgs also testified that he was aware of rumors going about the plant concerning unionization but characterized them as nothing sub stantial 456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD cuss organizing the plant Bennett set up a meeting the following day with a few other employees and, at this meeting additional organizing meetings involving the entire bargaining unit were set up for Friday March 27, and Saturday afternoon March 28 The Friday and Sat urday meetings were scheduled to take place and did take place at the L & K Motel located at Willard Ohio about 12 miles west of Greenwich Higgs admits that he was present at the L & K Motel in the late afternoon of March 28 along with his wife and Plant Superintendent Freelyn Gearhart Higgs and Gearhart testified that, while en route to pay a social call on Supervisor Gary Isaacs, who lived near Willard in a town called Shelby, they stopped off at the motel to have a cup of coffee at the motel restaurant Higgs took advantage of the occasion to make a room reservation for Paul Vaughn an applicant for an engineering job who was coming to Greenwich for an interview There is no doubt that several employees who were meeting at a conference room in the motel saw Gearhart and Higgs, both of whom drove off from the motel premises and re turned sometime later to permit Gearhart to get his pickup truck which he had parked at the motel during the visit to Isaacs house I credit Drossman's testimony that Higgs had informed him prior to this event that he had heard rumors that a union meeting was scheduled to take place at the L & K so he and Gearhart were going to the motel to see what was going on He also told Drossman that, if his presence at the motel were ques tioned he would simply say that he had gone there to make a room reservation for a prospective employee 6 On Monday March 30 Szumski sent a telegram to Higgs which advised him of the names of seven individ uals who were members of the Union s organizing com mittee at the plant and notified him that they would soon be distributing literature and soliciting authorization cards The telegram reminded Higgs that such activity was protected when it occurred on company premises during nonworking time The text of the telegram was phoned to the company office by Western Union that day and was delivered in written form shortly thereafter On Wednesday, April 1, Szumski sent Higgs a similar telegram in which he disclosed the names of six addition al employees as members of the organizing committee The originals of these mailgrams were sent to Midway s corporate manufacturing manager Jerry Graham in Monroe He had also been notified by telephone when the first message arrived from the Union in Greenwich It is quite commonplace for Midway to transfer the work of producing different items from one plant to an other and on some occasions to transfer the work back All three plants perform stamping operations so that transferring production simply means relocating dies to be fitted into other presses and possibly transferring raw materials and packaging to the other plant Various fac tors or combinations of factors govern these decisions They might include the skill level of the factory the dif ficulty of the job in question and the amount of work 8 From time to time visitors to the LPI plant have stayed at the L & K in Willard On those occasions it was customary for the receptionist at the plant to phone the motel to make reservations available at a given plant in comparison with the backlog at another plant On March 30 Higgs spoke with Dross man, whose job duties included ordering raw materials for the LPI plant, and told him that he was thinking of pulling the 874 job (trunk hinge) out of the LPI plant along with jobs 864 (engine brackets) 875 (air cleaner brackets) and possibly the 813 job (shock towers) Drossman had previously heard discussion that the 875 job might be transferred to another location for logistical reasons since another plant had the capacity to do the 875 job and a transfer would free machinery at LPI for other production However, this was the first time that Drossman had heard any mention of the possibility of a transfer of jobs 874, 864, and 813 7 I credit his testimony that, on the following day Higgs said that the Company wanted to see if a loss of jobs would have any impact on the union organizing effort Higgs compiled a list of 21 employees who might be affected by such a transfer and told Drossman that he had to call Graham in Monroe when the list was completed 8 In the course of his call to Graham, Higgs mentioned the names of the union orga nizers that had been disclosed in the union mailgram In the spring of 1987, the LPI plant worked two shifts On March 31 during the lunchbreak on the second shift Gearhart spoke with employee Charles Wolfenbarger who, at the time, was wearing a button which stated AIW-Ask Me For a Card I credit corroborated tes timony to the effect that Gearhart pointed his finger at Wolfenbarger and told Wolfenbarger that if he caught him passing out Union cards on company time, Wolfen barger s ass would be his Shortly after the end of the shift at midnight on March 31 8 or 10 of LPI employees who were sympathetic to the organizing drive held an informal meeting in the parking lot of an elementary school located on Seminary Street a block west of the plant The employees in volved stood next to their cars not far from the street They remained at this location for about half an hour until a city policeman told them that because of the late ness of the hour they would have to move to the munic ipal parking lot a few blocks away on South Railroad Street if they wanted to continue their meeting While they were still at the school site Gearhart drove west along Seminary Street past the gathering turned around and drove back past the school in the direction of the plant, looking at the employees while passing Shortly thereafter Gearhart again drove his pickup truck along Seminary Street past the school where the men were gathering These men also saw Higgs drive slowly past in his truck He turned around and drove past the group a second time After moving to the municipal parking lot they saw Higgs drive past this location looking at them Higgs and Gearhart admitted they were there but insist ed that they were only going to get a sandwich and hap 7 After the layoff Drossman and Higgs discussed the possible transfer of job 786 (package tray) but this job was never transferred 8 Higgs denies advising Graham that the Company should lay off 21 employees Higgs was a consistently untruthful witness and I discredit any of his testimony that contradicts evidence given by any other wit ness LAKEPARK INDUSTRIES 457 pened to go past the school yard en route to a cafe on U S Route 224 I credit the testimony of Terry Lee Curtis, one of the participants in these late night meetings, that, after the second meeting broke up, he drove to his home along Route 224, near where Higgs had been eating He ob served Higgs following him on Route 224 and turning down South Kniffen Street to Curtis home Curtis parked, went inside, and stood looking out the window of his house He saw Higgs drive past the house in the opposite direction to which he had originally been going, moving at an estimated speed of 10 mph 8 Respondent admits that it was plagued with a high turnover rate During late 1986 and early 1987, this rate approximated five or six employees per week Company records indicate that, during the calendar week of March 22-28, LPI hired a total of 11 new employees on its first and second shifts In the week of March 29 April 4, it hired four additional employees on these shifts On the afternoon and evening of April 1, it indefinitely laid off 31 employees in order of seniority On April 2, the day after the beginning of the Respondents new fiscal year, LPI shut down its entire operation for 2 days in order to take inventory, a practice that it had followed the pre ceding year On Monday, April 6, it resumed production with a unit of employees which was approximately 55 percent the size of the unit that was working the preced ing Monday According to Graham, this was five fewer employees than what the LPI plant manager had in formed him on April 1 were necessary to run the plant The reason for the layoff on April 1 is the central issue in this case Higgs was present at the corporate headquarters in Monroe on the date of the layoff He phoned Drossman at Greenwich instructed him to announce the layoff, and indicated who was going to be separated from the Com pany In this phone call Higgs dictated to Drossman the wording of the layoff notice and asked Drossman to read back the test of the proposed announcement so that there would be no mistake I credit Drossman's testimony to the effect that he was instructed that the layoff would be permanent because if it were only temporary the Com pany would still be exposed to the possibility of a union organizing because temporarily laid off employees could vote in an NLRB election Drossman personally made the layoff announcement to the day shift Higgs returned to Greenwich in the after noon and was present at the plant when Drossman made the announcement to the evening shift Drossman was asked by one employee if there was any chance that he might get his job back He replied that there was not be cause the layoff was permanent Another employee asked if laid off employees would be recalled in preference to new hires The answer was no A day or so later Higgs and Drossman had an occasion to discuss the layoff Higgs told him that the decision to lay off 31 employees 9 Curtis testified that he did not personally observe Higgs driving the vehicle but that he was certain that the vehicle in question belonged to Higgs Higgs admitted that he was driving his vehicle that evening in this vicinity but denies following Curtis This testimony is sufficient to sup port an inference that it was Higgs and no one else who was following Curtis in Higgs vehicle on the night in question had been made in Monroe before he arrived at the com pany headquarters, adding that higher management had originally decided to lay off only 29 but found that known union adherents were the last on a 29 employee layoff list so they added two more names in order to keep it from appearing that the layoff was designed to remove union supporters Higgs and Drossman decided to operate the second shift with a skeleton crew of seven employees and to place all known union sympathizers on the day shift where they could be watched When production resumed on April 6, Graham came from Monroe to speak to employees on both shifts He announced that the hiring in rate for employees had been increased, that the 6 month in grade raise had been in creased, and passed out profit sharing checks that also showed an increase over the amounts contained in simi lar checks which had been passed out the previous April He told employees that the Company had to produce a quality product and that the production jobs that had been lost were transferred to other plants to stabilize both the quality of the product and the labor force More than one employee asked if there were going to be additional layoffs He replied that there was no reason to pull more jobs out of the plant and the Company was going to try to bring some of them back Graham brought with him to the meeting William Plier of Empco, a labor relations consulting firm in Troy, Michi gan Pher was brought to the meeting to discuss union organizing but the record does not reveal what he said to employees on this subject Graham told employees that the Company did not need a union and expressed the hope that we can work things out Drossman testified credibly that known union adher ents remaining in the plant were assigned to the assembly line producing job 881 (cross member) This testimony was corroborated by other witnesses Job 881 was the most difficult and most tiring assignment in the plant be cause it involved the frequent lifting of 20 pound items as they were inserted and removed from the press For merly these jobs had been rotated among all employees who were working on the shift On April 7, Higgs told Drossman that he had received orders to lay off five more employees, including two union sympathizers be cause the corporate headquarters wanted to see what effect more layoffs might have on remaining employees He reported that Graham had said that taking a press out of the plant might wake people up In fact no addition al layoffs occurred and no presses were relocated On April 30 1987 the Union filed a representation pe tition asking for an election in the LPI production and maintenance unit (Case 8-RC-13630) When the first charge in this case was filed on June 26 the processing of the petition became temporarily blocked Over the summer LPI lost an additional 15 employees through at trition so, in late September and early October, it began to recall the individuals who had been laid off in April By the time the first hearing in this case had taken place in December, all 31 had been offered jobs and 15 had ac cepted them Those who were brought back to the plant were classified as probationary employees regardless of whether they had completed their normal 60 day proba 458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tionary period of employment before the April 1 layoff Among those who returned to work under these circum stances was discriminatee Charles Wolfenbarger who was rehired on October 13 On his first day back, Wolfenbarger and two other former employees who were being rehired met with sev eral management officials to discuss the terms and condi tions of their return to the plant Wolfenbarger, who was making $4 50 an hour when he was laid off on April 1, was rehired at the rate of $4 25 and went back to work on the first shift He had been a second shift employee during his former employment The three employees were told that, because they had been in layoff status longer than they had worked for the Company during their previous terms of service, they were being hired as new employees and would undergo another 60 day probationary period which all new hires must serve before becoming what the Company calls seniority employees Gearhart told the employees that things had changed at the plant He warned them Cross the line and you will be fired' The practical effect of being probationary employees rather than a reg ular or seniority employee is that they were subject to discharge for offenses which otherwise might result in the imposition of lesser punishment Respondent published a personnel policy statement to employees dated January 29, 1987, which sets up a point system for job infractions The policy outlined is inappli cable to probationary employees Points are assessed for various kinds of infractions and progressive discipline is administered in five steps as points are accumulated The fifth step is discharge The types of minor infractions to which this system is addressed were enumerated in rules and regulations which were posted 2 days before the system was announced Ten itemized infractions were characterized as minor and were within the point system They included various kinds of absenteeism, making or causing excessive scrap failure to wear proper clothing, failure to follow work instructions and similar deficiencies The published rules and regulations also enumerated 19 examples of gross misconduct, which included disregard of safety rules or safety practices de struction or abuse of company property and several other matters During his first 2 weeks of reemployment Wolfen barger was late in arriving at work on two occasions and was verbally warned about these infractions Higgs warned Wolfenbarger that he was a probationary em ployee and that if he was late to work again he would be fired A written notation was placed in his personnel file reciting that verbal warnings had been given for these violations of company rules There is no evidence of absenteeism on his part thereafter On November 23, he was written up for two job related infractions On November 18 he had accidentally run a die without a blank in it 10 The warning recited that Wolfenbarger 10 A pressing machine operator is assigned to place a metal blank in his press on top of a die which is bolted to the machine The press comes down on the blank and stamps it into the desired format The item is then removed by the operator and another blank is inserted to repeat the proc ess An operator is expected to produce four or five parts per minute failed to put a part in a die and it had run dry He also ran dry or had a miss hit on November 23 On December 4, 1987, Wolfenbarger was discharged about 2 p in in the afternoon for allowing a foreign object to remain in the die when he caused the press to stamp out a shock tower The press which Wolfenbarger and another employee, Gerald Ingle, were operating in tandem that day contained a die that produced the right and left sides of a shock tower One employee was as signed to one side of the press and the other was as signed to be his partner on the other side of the press Wolfenbarger's side produced the right portion of the shock tower and Ingle s produced the left portion Under standard operating procedure each operator uses a wire rod, called a slug puncher, for the purpose of cleaning scrap from around the die and for punching out by hand any circular slugs which might be left in the newly formed shock tower by the die as it struck the metal blank A slug puncher is not a tool that is issued but is merely a piece of excess wire which is bent and shaped to perform this function Wolfenbarger noticed a black slug puncher in the scrap area around his machine, picked it up, and laid it by the side of the press During the morning he and Ingle had shared the use of a single brown rod but after lunch Wolfenbarger began to use the black rod he had found About an hour after lunch, Wolfenbarger removed a completed shock tower from the press and noticed a ridge in the shape of a slug puncher indented in the body of the part Part of the wire from the slug puncher was in the part and some was in the die He recognized it as part of the rod both operators had been sharing earlier in the day He wiped off the die ran another part, and kept the machine in production for another hour or so He removed the shock tower with the indented crease and placed it with the scrap pile in the area of his machine 1 i Wolfenbarger testified that he did not know how a piece of rod got into the die About an hour later Gearhart came around saw the defective shock tower on the floor, and asked Wolfen barger what had happened Wolfenbarger replied that he did not know He also asked Ingle what had happened and Ingle said that he did not know He held up the slug puncher he was using to indicate that the rod that had caused the crease in the right shock tower that Gearhart was holding was not his Gearhart called William Ludban, the toolroom supervisor, to the scene and asked him to look at the die Ludban noticed that there was an impression in the die and on the part which it had pro duced and saw a piece of high tensile welding rod lying near the bed of the press outside the die He inspected the press and checked with the quality control inspectors who reported that the parts which had been run since the rod was initially discovered had a burr on one hole but that these were within limits of acceptability so the 11 When a press produces a defective part the part is placed at the foot of the machine and is ultimately collected painted with an identify ing mark and saved by the Company in its storage room The purpose of saving these parts is to put the Company in a position to support any ad verse evaluation of an operators performance should it be called on to do so LAKEPARK INDUSTRIES press was put back into operation and it continued to stamp out shock towers for the rest of the day The die was slated to be removed from the production line at the end of that day and subjected to periodic maintenance since the scheduled production run for shock towers had been completed 12 Gearhart asked Wolfenbarger how this irregularity had occurred Wolfenbarger replied that he had flipped a part over in removing it from the press, saw the indentation in the bottom of the part, and wiped it off Gearhart left the area temporarily, came back with another employee, Alfred Campbell, and put Campbell to work on the press He took Wolfenbarger with him to the break area On arriving in the break area Gearhart informed Wol fenbarger that he was being discharged as an unsatisfac tory probationary employee He was told to clean out his locker and turn in his safety equipment Higgs arrived at this scene to give Wolfenbarger his final paycheck and asked Wolfenbarger if he knew why he was being termi nated Wolfenbarger said it was because he was an unsat isfactory probationary employee Higgs then told him that he had been warned about tardiness, running dry, and leaving his work station early Wolfenbarger object ed, saying that he had never been warned about leaving his work station early Gearhart spoke up to remind him that he had warned Wolfenbarger, Rick Robinson, and others Wolfenbarger told him Freelyn, I think you are making a mistake You never warned me Higgs then added, You also ran a foreign object through the press Wolfenbarger denied the charge I never ran nothing through the press I didn t put it there I don t know how it got there ' Higgs asked Wolfenbarger to sign a form indicating that he had voluntarily quit his job Wolfenbarger refused so Higgs handed him his pay check and Wolfenbarger left the plant Gearhart placed the following statement , dated De cember 4, 1987, at 1 50 p in, in Wolfenbarger's personnel file Mr Charles Wolfenbarger Clock #311 was ter minated for being an unsatisfactory probationary employee for the following reasons 1 Tardiness 2 Leaving his work station before break, lunch, or the end of his shift 3 Failure to follow work instructions on three different occasions See attached documentation The documentation in question were the writeups that had been placed in the file on previous occasions The Union signed a request to proceed so the repre sentation petition filed on April 30 1987, was processed to an election on February 25, 1988 The Union lost by a vote of 32 to 14 12 After the die was removed to the tooiroom for routine maintenance additional reworking had to be performed to remove the crease caused by the slug puncher The toolroom supervisor estimated that this damage caused an additional 63 hours of maintenance work II ANALYSIS AND CONCLUSIONS 459 A Antiunion Animus and Independent Violations of Section 8(a)(1) of the Act (a) In addition to specific acts and statements alleged by the General Counsel to be violations of the Act, the Respondent, through its agents, made various statements which, while not alleged as violations, evidence a deep and abiding hostility on its part toward the unionization of its plant and a basically lawless attitude toward com batting that activity These statements set a background for this case against which the legality of other activity can and should be measured For that reason they should be pointed out at the beginning of any discussion of the issues in this case When rumors of unionization first began to surface, Higgs suggested to Drossman that he mention to certain procompany employees the possibility that the annual bonus might be withheld It was his hope that, after cir culating this suggestion among the work force, they might chill the union activity which he perceived to be in progress Drossman followed through on the sugges tion In fact the bonus in question was paid but the strat egy to shape up employees in this manner clearly reflect ed the attitude and disposition of the Respondent Higgs' statement over the phone to Drossman on the day of the mass layoff-that Drossman should be sure to tell em ployees that the layoff was permanent because temporar ily laid off employees could still vote in a representation election-was another display of the same mentality at work The same could be said for Higgs further state ment in that telephone conversation to the effect that management had originally decided to fire 29 employees but had added 2 more names to the list because the least senior employees on a list of 29 were 2 union adherents Two more names were being added to conceal the real motivation behind the layoff A few days later Higgs told Drossman that the Com pany had given orders to lay off more employees, includ ing two union supporters This was another display of animus, as was Graham s reported statement that moving some machinery out the door might wake people up There are not many close questions in this case but whenever they arise, repeated evidence of a devious and on going antiunion purpose lends character to what oc curred (b) In February 1987 Supervisor Beal told Shepherd that the Company was building a new plant in Michigan and would relocate the LPI operation if a union ever came in This statement is a threat to close the plant in the event of unionization and a violation of Section 8(a)(1) of the Act (c) On the Saturday before the layoff Higgs his wife and Gearhart made a sudden and impromptu visit to the L & K Motel in Willard An organizing committee meet ing was taking place at that motel at the same time The Respondents position is that it was purely coincidental that these two events happened simultaneously Higgs testified that he did not know of any scheduled union meeting and that he went to the motel to make a room reservation for a prospective employee who was coming 460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to town Instead of merely accomplishing the stated pur pose for the visit and moving on Higgs and his party stayed at the motel for a period of 20-30 minutes and later returned His explanation was, on its face, some what suspect, but coupled with a statement made to Drossman that he would use the making of a room reser vation as a pretext to find out what was going on at the union meeting, I conclude that the Respondent was on this occasion, engaging in surveillance of the union ac tivities of its employees Such activity is a violation of Section 8(a)(1) of the Act (d) Four days later, the Respondent engaged in the same activity a second time A short, informal, and public gathering of union supporters took place in front of a school located a short distance from the plant The employees involved in this meeting gathered there in the early morning hours of April 1 shortly after the end of the second shift Both Gearhart and Higgs drove past this gathering and slowed down as they did so Howev er, they were not content to make one pass but turned around and went by again This activity was repeated by Higgs when the gathering moved to another location a few blocks away The late night driving patterns of Higgs and Gearhart on this occasion make it abundantly clear that they were once again snooping about for infor mation relating to the union activities of Respondent s employees Such activity amounts to illegal surveillance and is a further violation of Section 8(a)(1) of the Act (e) I have credited the testimony of one of the employ ees who was a party to these late night union gatherings that after they broke up, Higgs followed him home, turned around, and drove slowly past his house a second time This event took place about 2 a in By engaging in surveillance of the union activities of Terry Lee Curtis in this manner the Respondent violated Section 8(a)(1) of the Act (f) When Gearhart pointed his finger at Wolfenbarger, who was then wearing two union buttons, and told Wol fenbarger that he would have his ass if he caught Wol fenbarger soliciting for the Union on company time the Respondent violated Section 8(a)(1) of the Act Respond ent did not have a no solicitation rule in effect and there is no evidence that Wolfenbarger in fact had been solicit ing for the Union, either on company time or any other time Gearhart s remark was wholly gratuitous and was uttered in an intimidating manner in the presence of other employees B The Layoff of 31 Employees on April 1 On Monday, March 30 the Union sent the Respondent a telegram informing it that the Union was organizing the LPI plant On Wednesday , April 1 the Respondent laid off 31 of its 68 production and maintenance employ ees 15 of whom had been hired during the preceding 2 weeks The Respondent would have us believe that this was another coincidence The business necessity ad vanced by the Respondent as its excuse for the layoff was the loss of jobs owing to a transfer of work from the LPI plant to other plants owned by the same employer Unlike economic justifications often proffered by em ployers as a defense to an unfair labor practice charge the loss of work experienced by the Respondent in this case was not occasioned by impersonal market forces above and beyond its control but by a business decision wholly within its control I discredit the testimony of Higgs and Graham, both of whom were untruthful witnesses, when they stated that the layoff in question was long in the making Re spondent experienced an employee turnover of five or six persons per week The fact that until April 1 it kept hiring new people while it was losing others indicates quite clearly that, until the day it received the Union s telegram, the Company had no thought of laying off anyone There is not a whit of corroboration for the tes timony of Higgs and Graham to the contrary, and there is the credited statement of Drossman, who was in charge of material purchasing for the LPI operation, that he was given no inkling of a layoff until a day or two before it occurred There had been talk over a consider able period of time about transferring one or two specific jobs to other locations, but such transfers were common place at LPI and had never before occasioned any pre cipitous reduction in the work force Higgs statement to Drossman to the effect that the employees should be told that the layoff was permanent because temporarily laid off employees could vote in a representation election re solves any lingering doubt as to the motivation which prompted this massive housecleaning Immediately fol lowing the April 1 layoffs, the Respondent shut down for 2 days for its regular annual inventory When pro duction resumed on the following Monday Graham was at the plant with a labor relations consultant to address the remaining work force Central to his message was that a union was unnecessary at LPI and that the Com pany and its employees could work out any differences without the intrusion of an outsider There is no merit to the Respondents argument that the layoff could not be discriminatorily motivated inas much as most of the laid off employees were not union members In support of this contention the Company points out that among the 31 who were terminated only the names of Dale Wilson and Charles Wolfenbarger ap peared on the union telegrams disclosing the identities of its organizing committee In the case of a discrimmatori ly motivated mass discharge the selection of employees to be terminated is unimportant ACTIV Industries 277 NLRB 356 (1985) The theory of the General Counsel well supported by the evidence, is that some employees were discharged in order to intimidate others who re mained In such an instance, the fact that those who were used as the instruments for intimidation were essen tially by standers to the incipient union effort (as many might be, since they had barely joined the Company), makes them discriminatees j ust as much as they would be if they were part of the leadership of the campaign Ac cordingly by discharging 31 employees on April 1, 1987 the Respondent violated Section 8(a)(1) and (3) of the Act 13 ' 9 Those laid off on April I were Calloway Jones Kerry Hale Jackie Dewitt Nick Kollar David Mathias Mike Stockmaster Hayden Ste phens Hillard Branham Rick Brant Saul Chavez Joe Mack Doug Mul lins Jim Artz Tim Stumbo Tom Perkins Ron Jones Arthur Norman Continued LAKEPARK INDUSTRIES C The Assignment of More Arduous Work to Union Supporters There seems to be general agreement that the most ar duous job in the LPI plant involves the production of cross members (job 881) The bulk of the production jobs at this plant involves the use of stamping machines Cross members are the heaviest item which must be in serted and removed repeatedly from these machines in the production process When the plant resumed produc tion Higgs and Drossman decided to place all union sympathizers on the day shift where they could be watched more easily Drossman testified credibly that known union adherents were assigned to job 881 Others credibly testified that the only employees working on that line when production resumed were union support ers Again, I do not believe this to be a coincidence The fact that they were later transferred to other lines when the 881 job was finished and the Respondent ran out of particularly arduous tasks for union supporters in no way absolves the Respondent from the violation that oc curred by virtue of the initial assignment By assigning more arduous work to employees in reprisal for their ac tivities in support of the Union, the Respondent violated Section 8(a)(1) of the Act D The Discharge of Charles Wolfenbarger on December 4 1987 Beginning in October 1987, the Respondent began to recall the employees it had laid off on April 1 This action was prompted by several considerations One was the fact that continued employee attrition during the summer months had reduced its postlayoff work force from 37 employees to 22 Another factor was the deci sion of the Respondent to assign new jobs to the LPI plant This decision involved both new work that the Company had acquired and the reassignment of produc tion jobs that had been taken away in April Over a period of weeks all the 31 laid off employees were re called but only 16 came back One of these was Charles Wolfenbarger, who returned to work on the first shift on October 13 1987 after an absence of about 6 1/2 months Respondents personnel policy statement provides that new employees are regarded during their first 60 days of employment as probationary employees At the end of this period of time they come to be so called seniority employees and are entitled under the manual to certain protections not afforded during their initial hiring in period All the employees who were recalled during the first weeks in October, including Wolfenbarger were re hired as probationary employees on the theory that they had been away from the plant longer than they had been working and thus were in need of retraining Wolfen barger had completed his probationary period before the first layoff Returning as a probationary employee meant that he forfeited the seniority he had accrued during February and March a valuable asset in a plant like LPI, Michael Mills Angie Lacey Charles Wolfenbarger David Arthur Arvel Buffington Teresa Hale Freddie Tuttle Richard Haas Rod Williams Eddie Campbell Jeff Van Meter Wayne Breitigan Dale Wilson and Kevin Archer 461 which has experienced rapid turnover It also meant that he went back to work at $4 25 per hour, which was 25 cents per hour less than he was earning at the time of the layoff Moreover, he did not return to the same shift he was working at the time of the layoff Most pertinent to this case is the fact that he was not subject to the pro gressive discipline system outlined in the Company s manual and hence was subject to discharge for any of fense or shortcoming, however trivial, without recourse to any protection, however minimal, which the manual might provide Gearhart admitted in testimony given during the resumed portion of this case that probationary employees were held to a higher standard of conduct than regular or seniority employees and were fired more readily than others, at least as far as attendance re lated deficiencies were concerned No one has seriously argued that either Wolfenbarger or any other recalled employee was reinstated to his former or substantially equivalent position, as the Board requires in the case of discriminatory discharges and layoffs and I find and conclude that they were not On his first day back on the job, Wolfenbarger and two other recalled employees met with Higgs and Gear hart concerning their status They were told that they were probationary employees and that the point system governing progressive discipline did not apply to them In the course of this discussion, Gearhart, the man who had warned Wolfenbarger some months earlier that his ass was his if he caught Wolfenbarger soliciting for the Union on company time, told the recalled employees that things had changed and cross the line and you 11 be fired It is clear that Wolfenbarger as well as others were grudgingly placed back on the company payroll It is not too strained an inference to draw that the pending Board case and a desire to toll possible backpay awards played a role in the Respondent's recall decision In a subsidiary argument the General Counsel con tends that the failure of the Respondent to reinstate Wol fenbarger and other discriminatees in the April layoff was at least evidence of continuing discriminatory intent He also argues that discharging Wolfenbarger in accord ance with the more stringent standards applied to proba tionary employees was in and of itself an unlawful act since Wolfenbarger a discriminatee was entitled to be reinstated as a seniority employee and treated accord ingly Respondent contends that the discharge that oc curred on December 4 would have taken place, regard less of whether Wolfenbarger was a fully reinstated "se niority employee because the difference in disciplinary standards of probationary versus regular employees ap plied only to minor offenses, principally attendance relat ed infractions and Wolfenbarger was discharged for a serious matter involving a grave breach of safety There is little doubt that placing the April discriminatees on probationary status and thus at the bottom of any seniori ty listing they might eventually achieve makes them par ticularly vulnerable to the same kind of layoff they expe rienced before being recalled They will again be among the first to go in the event that the Respondent seeks to shake up its work force as it did in April 1987, when it first received word of an organizing campaign More 462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD over, Gearhart s warning to Wolfenbarger and his col leagues on their first day back at work drew no distinc tions between major and minor offenses His admonition not to cross the line or else contained nothing of the re fined explanation which the Respondent offered at the hearing and in its brief It is clear from the evidence in this case that Wolfenbarger, a known union supporter, was a marked man from the time he returned to the LPI plant and that it was just a matter of time until he would be terminated again That time arose just a week before he would have completed his second probationary period and advanced again to the more protected ranks of se niority" or regular employees On October 19 and again on October 24 Wolfenbarger was late to work 15 minutes and 35 minutes respectively For these infractions a written warning was placed in his personnel file, signed by the plant manager, which con tained the statement Explained the seriousness of this, and explained to the employee [again] that he is a proba tionary employee The written warning was witnessed and apparently endorsed by Gary Isaacs, the first shift supervisor Wolfenbarger was not tardy again during his 7 week tenure in the fall of 1987 Had he been a regular employee with such a record, he would not even have received any disciplinary points under the Respondent's progressive system since a third tardiness did not occur within a 30 day period, or at all The paper trail which started in late October was lengthened on December 2, 2 days before Wolfenbarger was discharged On this date he and three other employ ees returned from a midmorning break found that they were without work gloves, and went to the crib to get them They were away from their machines for 5 min utes or less on this errand For leaving their machines on this errand the other employees were given a verbal warning A written warning signed by Gearhart, was placed in Wolfenbarger s file in which he was made to look like the `heavy" in this essentially trivial event It read I verbally warned Charles Wolfenbarger, Don Miller, Arvel Johnson, and Kevin Archer about leaving their work stations prior to break lunch or the end of their shift Mr Wolfenbarger left his work station the 808 flange die, and went to the crib for gloves He was followed by Kevin Archer, Don Miller and Arvel Johnson shutting down the 808 line Employees working the stamping machines normally wear gloves in the performance of their duties Gearhart stated that they should have provided themselves with gloves on their own time or if they found that they were without gloves during the operation of the line, they should have summoned him to the machine and he would have obtained gloves for them 14 14 Assuming that fetching work gloves is a violation of company work rules-and the Company is the sole interpreter and judge of its work rules in an unorganized setting-this offense amounts to a two point vio lation for any regular employee covered by the Respondents progressive discipline system In the operation of stamping machines, certain mis takes occur from time to time called dry runs or miss hits A dry run occurs when an operator forgets to put a blank in the press and causes it to come all the way down on the die No finished part is produced A miss hit occurs when the blank is inserted into the ma chine askew so that the die is stamped into the blank at an improper location 15 In either event, the Respondent requires an operator to stop the machine and notify his foreman or the tool room supervisor so that the machine can be checked Respondent's tool room supervisor, Wil Liam C Ludban, admitted that the checking procedure is not always followed and, from time to time, an operator will simply continue to run the machine after a dry run or a miss hit has occurred Wolfenbarger s machine had a dry run on November 18 and a miss hit on November 23 He was given verbal warnings on both occasions and a written memo to that effect was placed in his file by Gearhart In addition to reciting events which occurred, Gearhart's memo of No vember 23 contained a generalized explanatory or argu mentative comment that this creates damage to the die and a safety hazzard [sic] to himself and fellow work ers According to Ludban, what normally follows if several of these incidents occur involving the same oper ator is that, after the machine is checked out, later we will sit down and talk to that person He knew of no instance when an individual had been discharged for cre ating a miss hit, a dry run, or even several of them Ludban was reluctant to quantify the frequence with which miss hits occur at the LPI factory but stated that they might range from none in an entire week to several in the course of the day As recited above on December 4 following the lunch break Wolfenbarger noticed that a slug puncher had been left in his side of the stamping machine and had made an indentation on a part that was being stamped out The part contained an indentation made by the press as it stamped the die into the metal blank He removed the defective part, wiped off the die, and continued to run the machine An hour later Gearhart discovered the defective part lying near the machine, stopped the oper ation, and asked Wolfenbarger what had happened Wol fenbarger said that he did not know Soon thereafter Ludban and others inspected the stamping machine and saw a slight indentation on the die itself but allowed production to continue because the slight burr it made in the shock towers was within limits tolerated by quality control inspectors Wolfenbarger was immediately discharged The notifi cation placed in his file recited that he was being dis charged for tardiness leaving his work station before a break, and failure to follow work instructions on three different occasions While this was the Respondent s original position it eventually modified its reasons for discharge at the hearing Higgs admitted that the first items recited in the notice would not have caused the Company to discharge Wolfenbarger In their view the 15 It would appear from a careful reading of the notice placed in Wol fenbarger s file on November 23 that the terms dry run and miss hit were sometimes used interchangeably LAKEPARK INDUSTRIES essence of Wolfenbarger s serious shortcoming was that he created a safety hazard by allowing the slug puncher to get into the stamping machine and by failing to notify supervision after removing the foreign object so that the machine could be checked out During the hearing the Respondent advanced other related reasons justifying its action but it ultimately backed away from them For in stance, there was a suggestion that Wolfenbarger dam aged an entire production run by allowing the slug puncher to cause an indentation in the die However, when it appeared that the Respondent had continued to run an additional 300 shock towers during the course of the afternoon in question, this contention was laid aside Respondent also placed into the record a great deal of evidence to the effect that Wolfenbarger s mistake had cost the Company dearly To be precise the Company removed the die at the end of the day because it was fin ished producing the part in question and, during routine maintenance it expended some 63 hours over and above normal polishing to remove the ridge in the die caused by the imprint of the slug puncher However, because none of this was known to Higgs and Gearhart when they fired Wolfenbarger the argument amounted merely to a makeweight and it was ultimately discarded Respondent then settled on breach of safety as the crit ical element in Wolfenbarger s misconduct However, there is no suggestion of a safety violation in the dis charge notice that was handed to Wolfenbarger and placed in his file on the afternoon he was fired Faced with the fact that it had never fired an employee for a miss hit, a dry run, or for failing to report one of these incidents to a supervisor, Respondent sought to avoid the contention of disparate treatment by painting the slug puncher incident as a unique and unprecedented threat to the safety of the plant and to employees working there No such threat is apparent from the detailed description in the record of what occurred 16 After Wolfenbarger discovered the rod in the machine he simply wiped the die clean and continued to run the machine It operated without difficulty for an hour and would have continued to operate without interruption for the balance of the day if Gearhart had not spotted the defective part which Wolfenbarger had removed and shut the machine down Even if a safety violation were made out by the facts of this case, Gearhart testified that he never knew of anyone who had been discharged for that reason The two instances advanced by the Respondent as safety re lated discharges were instances of reckless horseplay which were categorically different from the events in this case, events which spell out nothing more than rou tine negligence which the Respondent has routinely ac commodated as an unavoidable aspect of its production activity In light of these considerations, I conclude that the Respondent discriminatorily discharged Charles Wol fenbarger on December 4, 1987 for the second time and 16 Gearhart was asked whether he thought that Wolfenbarger deliber ately attempted to sabotage the press by placing the slug puncher on the die He declined to make that allegation However Higgs hinted around without actually accusing Wolfenbarger of intentional misconduct that this was what might really have occurred The Respondent took no such position in its brief 463 in so doing once again violated Section 8 (a)(1) and (3) of the Act CONCLUSIONS OF LAW 1 Lakepark Industries Inc is now, and at all times material has been, an employer engaged in commerce within the meaning of Section 2(2) of the Act 2 International Union, Allied Industrial Workers of America AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act 3 By discriminatonly laying off 31 employees on April 1, 1987, and by discriminatorily discharging Charles Wolfenbarger on December 4, 1987, the Re spondent violated Section 8(a)(3) of the Act 4 By the acts and conduct set forth above in Conclu sions of Law 3, by threatening employees with discharge or other unnamed reprisals if they engage in lawful union solicitation on company premises, by engaging in surveil lance of the union activities of its employees, and by as signing more onerous work to employees in reprisal for the sympathies with or activities on behalf of the Union, the Respondent violated Section 8(a)(1) of the Act 5 These acts and conduct have a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(2), (6), and (7) of the Act REMEDY Having found that the Respondent has committed vari ous unfair labor practices I will recommend that it be required to cease and desist and to take other actions de signed to effectuate the purposes and policies of the Act Because the violations of the Act found are repeated pervasive and serious and evidence a fixed disposition on the part of this Respondent to behave in a manner to tally at odds with the requirements of an important con gressional mandate, I will recommend to the Board a so called broad 8(a)(1) remedy designed to suppress any and all violations of that section of the Act Hickmott Foods 242 NLRB 1357 ( 1979) I will recommend to the Board that the Respondent be required to reinstate the 31 em ployees who were laid off on April 1 1987 including but not limited to Charles Wolfenbarger and that these employees be made whole for any loss of pay or benefits which they may have suffered by reason of the discrimi nations found in accordance with the formula set forth in the Woolworth case 17 with interest thereon computed at the short term Federal rate used to compute interest on underpayments and overpayments of Federal income taxes under the Tax Reform Act of 1986 New Horizons for the Retarded, 283 NLRB 1173 ( 1980) The recommen dation relating to the reinstatement of Wolfenbarger would be the same regardless of whether the December 4 1987 discharge is deemed unlawful, since the Respond ent has never fulfilled its reinstatement obligation to Wolfenbarger arising out of the earlier discrimination and should not be excused from that obligation by the happening of any subsequent events I will also recom mend that the Respondent be required to post the usual 17 F W Woolworth Co 90 NLRB 289 (1950) 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD notice advising its employees of their rights and of the results of this case On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edis ORDER The Respondent, Lakepark Industries, Inc, Green wich, Ohio its officers agents successors, and assigns, shall 1 Cease and desist from (a) Engaging in the surveillance of the union activities of its employees (b) Assigning more onerous work to employees in re prisal for their union activities (c) Threatening employees with discharge or other un named reprisals for engaging in lawful union solicitation on company premises (d) Discouraging membership in or activities on behalf of International Union, Allied Industrial Workers of America, AFL-CIO, or any other labor organization by laying off or discharging employees, or by otherwise dis criminating against them in their hire or tenure (e) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar anteed them by Section 7 of the Act 18 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended 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 pur poses 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer to the 31 employees immediate and full rein statement to their former jobs or if those jobs no longer exist, to substantially equivalent positions, without preju dice to their seniority or any other rights or privileges previously enjoyed and make them whole for any loss of earnings and other benefits suffered as a result of the dis crimination 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 the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Post at the Respondents Greenwich, Ohio plant copies of the attached notice marked Appendix 19 Copies of the notice, on forms provided by the Regional Director for Region 8 after being signed by the Re spondent s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted Reasonable steps shall be taken by the Respond ent to ensure that the notices are not altered, defaced, or covered by any other material (d) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply 19 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 Nation al 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