Magnesium Casting Company, Inc.

MAGNESIUM CASTING COMPANY, INC. 419 Magnesium Casting Company, Inc. and United Elec- ed conduct caused his discharge. Thus, Thomas' trical, Radio and Machine Workers of America open union activity, the precipitous nature of the (UE) Local 262. Case 1-CA-16886 layoff, and Respondent's earlier unlawful conduct November 30, 1981 lend support to establishing the General Counsel's prima facie case. Nonetheless, we find that Re- DECISION AND ORDER spondent rebutted the General Counsel's evidence and met its burden, under Wright Line, of demon- BY MEMBERS FANNING, JENKINS, AND strating that the layoff would have occurred even ZIMMERMAN absent Thomas' protected conduct. As recited On September 15, 1980, Administrative Law more fully by the Administrative Law Judge, Re- Judge Norman Zankel issued the attached Decision spondent, in support of its economic defense, clear- in this proceeding. Thereafter, the General Counsel ly established that: (1) Thomas received a request- and Respondent filed exceptions and supporting ed transfer subsequent to his protected activities in briefs. March 1979; (2) the first shift in the die mainte- Pursuant to the provisions of Section 3(b) of the nance department where Thomas worked had reg- National Labor Relations Act, as amended, the Na- ularly been staffed by one employee who was tional Labor Relations Board has delegated its au- senior to Thomas; (3) there was a need for a layoff thority in this proceeding to a three-member panel. in die maintenance and Respondent, since June The Board has considered the record and the at- 1979, had been laying off employees. In fact, tached Decision in light of the exceptions and Thomas was only 1 of 33 employees laid off during briefs and has decided to affirm the rulings, find- Respondent's reduction of its production and main- ings,' and conclusions of the Administrative Law tenance work force; (4) the layoff was made in Judge only to the extent consistent herewith. conformity with preexisting and customary stand- The facts, as more fully set forth by the Admin- ards; and (5) no one was hired to replace Thomas. 2 istrative Law Judge, show that Respondent hired The Administrative Law Judge concluded that Lawrence Thomas as a die-cast machine operator "the sum of Respondent's economic evidence is im- in October 1978. In March 1979, Thomas was the pressive." Nevertheless, the Administrative Law leader of a brief work stoppage. In addition, Judge concluded that Respondent's asserted de- Thomas openly distributed union literature at Re- fense was "pretextual." spondent's plant. Throughout the spring and early In Limestone Apparel Corp., 255 NLRB 722 summer of 1979, Thomas requested a transfer to (1981), we noted that "a finding of pretext neces- the die maintenance department. Respondent grant- sarily means that the reasons of the employer either ed Thomas' request and transferred him in July did not exist or were not in fact relied upon, there- 1979. Respondent laid off Thomas on November by leaving intact the inference of wrongful motive 27, 1979. The layoff occurred only 1 day after established by the General Counsel." Thomas engaged in protected activity by again dis- Here, it is beyond dispute that Respondent's tributing leaflets to Respondent's employees. proffered economic reasons for the layoff, in fact, In Wright Line, a Division of Wright Line, Inc., existed. Indeed, the Administrative Law Judge 251 NLRB 1083 (1980), the Board stated that in stated that "[t]he evidence establishes the need for 8(a)(3) discharge cases the General Counsel must a layoff in die maintenance." As noted, Respondent first "make a prima facie showing sufficient to sup- presented compellng and substantial evidence that port the inference that protected conduct was a economic conditions forced a significant cutback in 'motivating factor' in the employer's decision" and its production and maintenance work force. 3 "[o]nce this is established, the burden will shift to Contrary to the Administrative Law Judge, we the employer to demonstrate that the same action cannot conclude that the economic reasons were would have taken place even in the absence of the not relied upon by Respondent in deciding to lay protected conduct." off Thomas. Neither specific evidence adduced by Here, the evidence produced by the General Counsel, and cited by the Administrative Law 'Later, in April 1980, a promotion created a vacancy in the die main- Judge, warrants an infrnc that Thomas' protect- tenance department. The parties stipulated that Thomas, in April 1980. Judge, warrants an inference that Thomas' protect- ereceived a bona fide, unconditional offer of reinstatement, which he de- clined. Respondent has excepted to certain credibility findings made by the ' Before Thomas' transfer, the die maintenance department was staffed Administrative Law Judge. It is the Board's established policy not to by one worker per shift. At the time of the transfer, the department had a overrule an administrative law judge's resolutions with respect to credi- backlog in its work. However, when Thomas' layoff occurred, the back- bility unless the clear preponderance of all of the relevant evidence con- log had diminished. Richard Courtois, the senior die maintenance em- vinces us that the resolutions are incorrect. Standard Dry Wall Products ployee who worked with Thomas on the first shift, confirmed that it was Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have "not busy at all" in the die maintenance department at the time of carefully examined the record and find no basis for reversing his findings. Thomas' layoff. 259 NLRB No. 64 MAGNESIUM CASTING COMPANY, INC. 419 Magnesium Casting Company, Inc. and United Elec- ed conduct caused his discharge. Thus, Thomas' trical, Radio and Machine Workers of America open union activity, the precipitous nature of the (UE) Local 262. Case 1-CA-16886 layoff, and Respondent's earlier unlawful conduct November 30, 1981 le n d support to establishing the General Counsel's prima facie case. Nonetheless, we find that Re- DECISION AND ORDER spondent rebutted the General Counsel's evidence and met its burden, under Wright Line, of demon- BY MEMBERS FANNING, JENKINS, AND strating that the layoff would have occurred even ZIMMERMAN absent Thomas' protected conduct. As recited On September 15, 1980, Administrative Law more fully by the Administrative Law Judge, Re- Judge Norman Zankel issued the attached Decision spondent, in support of its economic defense, clear- in this proceeding. Thereafter, the General Counsel ly established that: (1) Thomas received a request- and Respondent filed exceptions and supporting ed transfer subsequent to his protected activities in briefs. March 1979; (2) the first shift in the die mainte- Pursuant to the provisions of Section 3(b) of the nance department where Thomas worked had reg- National Labor Relations Act, as amended, the Na- ularly been staffed by one employee who was tional Labor Relations Board has delegated its au- senior to Thomas; (3) there was a need for a layoff thority in this proceeding to a three-member panel. in die maintenance and Respondent, since June The Board has considered the record and the at- 1979, had been laying off employees. In fact, tached Decision in light of the exceptions and Thomas was only 1 of 33 employees laid off during briefs and has decided to affirm the rulings, find- Respondent's reduction of its production and main- ings,' and conclusions of the Administrative Law tenance work force; (4) the layoff was made in Judge only to the extent consistent herewith. conformity with preexisting and customary stand- The facts, as more fully set forth by the Admin- ards; and (5) no one was hired to replace Thomas. 2 istrative Law Judge, show that Respondent hired The Administrative Law Judge concluded that Lawrence Thomas as a die-cast machine operator "the sum of Respondent's economic evidence is im- in October 1978. In March 1979, Thomas was the pressive." Nevertheless, the Administrative Law leader of a brief work stoppage. In addition, Judge concluded that Respondent's asserted de- Thomas openly distributed union literature at Re- fense was "pretextual." spondent's plant. Throughout the spring and early In Limestone Apparel Corp., 255 NLRB 722 summer of 1979, Thomas requested a transfer to (1981), we noted that "a finding of pretext neces- the die maintenance department. Respondent grant- sarily means that the reasons of the employer either ed Thomas' request and transferred him in July did not exist or were not in fact relied upon, there- 1979. Respondent laid off Thomas on November by leaving intact the inference of wrongful motive 27, 1979. The layoff occurred only 1 day after established by the General Counsel." Thomas engaged in protected activity by again dis- Here, it is beyond dispute that Respondent's tributing leaflets to Respondent's employees. proffered economic reasons for the layoff, in fact, In Wright Line, a Division of Wright Line, Inc., existed. Indeed, the Administrative Law Judge 251 NLRB 1083 (1980), the Board stated that in stated that "[t]he evidence establishes the need for 8(a)(3) discharge cases the General Counsel must a layoff in die maintenance." As noted, Respondent first "make a prima facie showing sufficient to sup- presented compellng and substantial evidence that port the inference that protected conduct was a economic conditions forced a significant cutback in 'motivating factor' in the employer's decision" and its production and maintenance work force.3 *[o]nce this is established, the burden will shift to Contrary to the Administrative Law Judge, we the employer to demonstrate that the same action cannot conclude that the economic reasons were would have taken place even in the absence of the not relied upon by Respondent in deciding to lay protected conduct." off Thomas. Neither specific evidence adduced by Here, the evidence produced by the General Counsel, and Cited by the Administrative Law 'Later, in April 1980, a promotion created a vacancy in the die main- Jllde warrants an infprenrc that Thnmac' nrntwt"tenance department. The parties stipulated that Thomas, in April 1980. Judge, Warrants an inference that Thomas' protect- \received a bona fide, unconditional offer of reinstatement, which he de- ldined. Respondent has excepted to certain credibility findings made by the IBefore Thomas' transfer, the die maintenance department was staffed Administrative Law Judge. It is the Board's established policy not to by one worker per shift. At the time of the transfer, the department had a overrule an administrative law judge's resolutions with respect to credi- backlog in its work. However, when Thomas' layoff occurred, the back- bility unless the clear preponderance of all of the relevant evidence con- log had diminished. Richard Courtois, the senior die maintenance em- vinces us that the resolutions are incorrect. Standard Dry Wall Products ployee who worked with Thomas on the first shift, confirmed that it was Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have "not busy at all" in the die maintenance department at the time of carefully examined the record and find no basis for reversing his findings. Thomas' layoff. 259 NLRB No. 64 MAGNESIUM CASTING COMPANY, INC. 419 Magnesium Casting Company, Inc. and United Elec- ed conduct caused his discharge. Thus, Thomas' trical, Radio and Machine Workers of America open union activity, the precipitous nature of the (UE) Local 262. Case 1-CA-16886 layoff, and Respondent's earlier unlawful conduct November 30, 1981 le n d support to establishing the General Counsel's prima facie case. Nonetheless, we find that Re- DECISION AND ORDER spondent rebutted the General Counsel's evidence and met its burden, under Wright Line, of demon- BY MEMBERS FANNING, JENKINS, AND strating that the layoff would have occurred even ZIMMERMAN absent Thomas' protected conduct. As recited On September 15, 1980, Administrative Law more fully by the Administrative Law Judge, Re- Judge Norman Zankel issued the attached Decision spondent, in support of its economic defense, clear- in this proceeding. Thereafter, the General Counsel ly established that: (1) Thomas received a request- and Respondent filed exceptions and supporting ed transfer subsequent to his protected activities in briefs. March 1979; (2) the first shift in the die mainte- Pursuant to the provisions of Section 3(b) of the nance department where Thomas worked had reg- National Labor Relations Act, as amended, the Na- ularly been staffed by one employee who was tional Labor Relations Board has delegated its au- senior to Thomas; (3) there was a need for a layoff thority in this proceeding to a three-member panel. in die maintenance and Respondent, since June The Board has considered the record and the at- 1979, had been laying off employees. In fact, tached Decision in light of the exceptions and Thomas was only 1 of 33 employees laid off during briefs and has decided to affirm the rulings, find- Respondent's reduction of its production and main- ings,' and conclusions of the Administrative Law tenance work force; (4) the layoff was made in Judge only to the extent consistent herewith. conformity with preexisting and customary stand- The facts, as more fully set forth by the Admin- ards; and (5) no one was hired to replace Thomas. 2 istrative Law Judge, show that Respondent hired The Administrative Law Judge concluded that Lawrence Thomas as a die-cast machine operator "the sum of Respondent's economic evidence is im- in October 1978. In March 1979, Thomas was the pressive." Nevertheless, the Administrative Law leader of a brief work stoppage. In addition, Judge concluded that Respondent's asserted de- Thomas openly distributed union literature at Re- fense was "pretextual." spondent's plant. Throughout the spring and early In Limestone Apparel Corp., 255 NLRB 722 summer of 1979, Thomas requested a transfer to (1981), we noted that "a finding of pretext neces- the die maintenance department. Respondent grant- sarily means that the reasons of the employer either ed Thomas' request and transferred him in July did not exist or were not in fact relied upon, there- 1979. Respondent laid off Thomas on November by leaving intact the inference of wrongful motive 27, 1979. The layoff occurred only 1 day after established by the General Counsel." Thomas engaged in protected activity by again dis- Here, it is beyond dispute that Respondent's tributing leaflets to Respondent's employees. proffered economic reasons for the layoff, in fact, In Wright Line, a Division of Wright Line, Inc., existed. Indeed, the Administrative Law Judge 251 NLRB 1083 (1980), the Board stated that in stated that "[t]he evidence establishes the need for 8(a)(3) discharge cases the General Counsel must a layoff in die maintenance." As noted, Respondent first "make a prima facie showing sufficient to sup- presented compellng and substantial evidence that port the inference that protected conduct was a economic conditions forced a significant cutback in 'motivating factor' in the employer's decision" and its production and maintenance work force.3 *[o]nce this is established, the burden will shift to Contrary to the Administrative Law Judge, we the employer to demonstrate that the same action cannot conclude that the economic reasons were would have taken place even in the absence of the not relied upon by Respondent in deciding to lay protected conduct." off Thomas. Neither specific evidence adduced by Here, the evidence produced by the General Counsel, and Cited by the Administrative Law 'Later, in April 1980, a promotion created a vacancy in the die main- Jllde warrants an infprenrc that Thnmac' nrntwt"tenance department. The parties stipulated that Thomas, in April 1980. Judge, Warrants an inference that Thomas' protect- \received a bona fide, unconditional offer of reinstatement, which he de- ldined. Respondent has excepted to certain credibility findings made by the IBefore Thomas' transfer, the die maintenance department was staffed Administrative Law Judge. It is the Board's established policy not to by one worker per shift. At the time of the transfer, the department had a overrule an administrative law judge's resolutions with respect to credi- backlog in its work. However, when Thomas' layoff occurred, the back- bility unless the clear preponderance of all of the relevant evidence con- log had diminished. Richard Courtois, the senior die maintenance em- vinces us that the resolutions are incorrect. Standard Dry Wall Products ployee who worked with Thomas on the first shift, confirmed that it was Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have "not busy at all" in the die maintenance department at the time of carefully examined the record and find no basis for reversing his findings. Thomas' layoff. 259 NLRB No. 64 MAGNESIUM CASTING COMPANY, INC. 419 Magnesium Casting Company, Inc. and United Elec- ed conduct caused his discharge. Thus, Thomas' trical, Radio and Machine Workers of America open union activity, the precipitous nature of the (UE) Local 262. Case 1-CA-16886 layoff, and Respondent's earlier unlawful conduct November 30, 1981 le n d support to establishing the General Counsel's prima facie case. Nonetheless, we find that Re- DECISION AND ORDER spondent rebutted the General Counsel's evidence and met its burden, under Wright Line, of demon- BY MEMBERS FANNING, JENKINS, AND strating that the layoff would have occurred even ZIMMERMAN absent Thomas' protected conduct. As recited On September 15, 1980, Administrative Law more fully by the Administrative Law Judge, Re- Judge Norman Zankel issued the attached Decision spondent, in support of its economic defense, clear- in this proceeding. Thereafter, the General Counsel ly established that: (1) Thomas received a request- and Respondent filed exceptions and supporting ed transfer subsequent to his protected activities in briefs. March 1979; (2) the first shift in the die mainte- Pursuant to the provisions of Section 3(b) of the nance department where Thomas worked had reg- National Labor Relations Act, as amended, the Na- ularly been staffed by one employee who was tional Labor Relations Board has delegated its au- senior to Thomas; (3) there was a need for a layoff thority in this proceeding to a three-member panel. in die maintenance and Respondent, since June The Board has considered the record and the at- 1979, had been laying off employees. In fact, tached Decision in light of the exceptions and Thomas was only 1 of 33 employees laid off during briefs and has decided to affirm the rulings, find- Respondent's reduction of its production and main- ings,' and conclusions of the Administrative Law tenance work force; (4) the layoff was made in Judge only to the extent consistent herewith. conformity with preexisting and customary stand- The facts, as more fully set forth by the Admin- ards; and (5) no one was hired to replace Thomas. 2 istrative Law Judge, show that Respondent hired The Administrative Law Judge concluded that Lawrence Thomas as a die-cast machine operator "the sum of Respondent's economic evidence is im- in October 1978. In March 1979, Thomas was the pressive." Nevertheless, the Administrative Law leader of a brief work stoppage. In addition, Judge concluded that Respondent's asserted de- Thomas openly distributed union literature at Re- fense was "pretextual." spondent's plant. Throughout the spring and early In Limestone Apparel Corp., 255 NLRB 722 summer of 1979, Thomas requested a transfer to (1981), we noted that "a finding of pretext neces- the die maintenance department. Respondent grant- sarily means that the reasons of the employer either ed Thomas' request and transferred him in July did not exist or were not in fact relied upon, there- 1979. Respondent laid off Thomas on November by leaving intact the inference of wrongful motive 27, 1979. The layoff occurred only 1 day after established by the General Counsel." Thomas engaged in protected activity by again dis- Here, it is beyond dispute that Respondent's tributing leaflets to Respondent's employees. proffered economic reasons for the layoff, in fact, In Wright Line, a Division of Wright Line, Inc., existed. Indeed, the Administrative Law Judge 251 NLRB 1083 (1980), the Board stated that in stated that "[t]he evidence establishes the need for 8(a)(3) discharge cases the General Counsel must a layoff in die maintenance." As noted, Respondent first "make a prima facie showing sufficient to sup- presented compellng and substantial evidence that port the inference that protected conduct was a economic conditions forced a significant cutback in 'motivating factor' in the employer's decision" and its production and maintenance work force.3 *[o]nce this is established, the burden will shift to Contrary to the Administrative Law Judge, we the employer to demonstrate that the same action cannot conclude that the economic reasons were would have taken place even in the absence of the not relied upon by Respondent in deciding to lay protected conduct." off Thomas. Neither specific evidence adduced by Here, the evidence produced by the General Counsel, and Cited by the Administrative Law 'Later, in April 1980, a promotion created a vacancy in the die main- Jllde warrants an infprenrc that Thnmac' nrntwt"tenance department. The parties stipulated that Thomas, in April 1980. Judge, Warrants an inference that Thomas' protect- \received a bona fide, unconditional offer of reinstatement, which he de- ldined. Respondent has excepted to certain credibility findings made by the IBefore Thomas' transfer, the die maintenance department was staffed Administrative Law Judge. It is the Board's established policy not to by one worker per shift. At the time of the transfer, the department had a overrule an administrative law judge's resolutions with respect to credi- backlog in its work. However, when Thomas' layoff occurred, the back- bility unless the clear preponderance of all of the relevant evidence con- log had diminished. Richard Courtois, the senior die maintenance em- vinces us that the resolutions are incorrect. Standard Dry Wall Products ployee who worked with Thomas on the first shift, confirmed that it was Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have "not busy at all" in the die maintenance department at the time of carefully examined the record and find no basis for reversing his findings. Thomas' layoff. 259 NLRB No. 64 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel 4 nor the record as a whole 1. Delete paragraph l(a), reletter subsequent warrants a finding that Respondent's economic rea- paragraphs accordingly, and substitute the follow- sons were not genuine and served only to mask Re- ing for paragraph l(c): spondent's antiunion reasons. Respondent specifi- "(c) In any like or related manner interfering cally established the need for a layoff in the die with, restraining, or coercing employees in the ex- maintenance department-where Thomas was the ercise of the rights guaranteed them by Section 7 least senior and least experienced employee. of the Act." Further, as previously noted, Thomas engaged in 2. Delete paragraphs 2(a) and (b), and reletter substantial protected activities in March 1979. Ad- the subsequent paragraphs accordingly. ditionally, though not specifically alluded to by the 3. Substitute the attached notice for that of the Administrative Law Judge, Thomas' leafletting of Administrative Law Judge. November 26 did not constitute the first time heAPPENDIX enaged in such activity. Rather, Thomas acknowl- edged that, after March 1979, he had leafletted and NOTICE To EMPLOYEES posted union notices on six or seven occasions at POSTED BY ORDER OF THE Respondent's gate as well as in the shop. However, NATIONAL LABOR RELATIONS BOARD his employment was not adversely affected by his An Agency of the United States Government earlier protected activities and, in fact, he subse- quently received the transfer he had requested. After a hearing at which all sides had an opportu- This factor, to an extent, undercuts the General nity to present evidence and state their positions, Counsel's contention that Respondent was motivat- the National Labor Relations Board found that we ed by antipathy to Thomas' protected activities, have violated the National Labor Relations Act, as and bolsters Respondent's economic defense. amended, and has ordered us to post this notice. The General Counsel has the burden of proving, The Act gives employees the following rights: by a preponderance of the credited evidence, that a respondent acted on the basis of improper motiva- To engage in self-organization tion in disciplining or discharging an alleged discri-To form, join, or assist any union minatee. In light of Respondent's unrebutted show- To bargain collectively through repre- ing that legitimate business considerations caused it sentatives of their own choice to lay off Thomas, the General Counsel failed to To engage in activities together for the carry the burden of proof, and thus the complaint purpose of collective bargaining or other must be dismissed as to the alleged 8(a)(3) violation mutual aid or protection in the layoff of Thomas.5 To refrain from the exercise of any or all such activities. ORDER Accordingly, we give you these assurances: Pursuant to Section 10(c) of the National Labor WE WILL NOT tell you to keep a low profile Relations Act, as amended, the National Labor Re- regarding the exercise of any of the rights de- lations Board adopts as its Order the recommended scribed above. Order of the Administrative Law Judge, as modi- WE WILL NOT in any like or related manner fled below, and hereby orders that the Respondent, interfere with, restrain, or coerce any of you Magnesium Casting Company, Inc., Hyde Park, because you engage, or refuse to engage, in Massachusetts, its officers, agents, successors, and any of the protected activities described at the assigns, shall take the action set forth in the said top of this notice. recommended Order, as so modified: MAGNESIUM CASTING COMPANY, Unlike the Administrative Law Judge, we find no basis in the record INC. for concluding that Respondent's reasons for selecting November 27 as the date for Thomas' layoff were "unconvincing." The Administrative Law Judge surmised that Respondent's permitting the need for layoff in DECISION die maintenance to become "critical" would demonstrate a lack of "busi- ness acumen" by Respondent's officials. However, it was not shown that NORMAN ZANKEL, Administratve Law Judge: This Thomas' layoff was decided upon or implemented in a fashion or manner case was heard before me on June 24 and 25, 1980 in different from Respondent's other numerous layoffs. We would not-on Boston, Massachusetts. the basis that it showed a lack of "business acumen"-question the date Upon a charge filed on November 29, 1979,1 by selected by Respondent for the layoff. We will also substitute a narrow cease-and-desist order for the broad United Electrical, Radio and Machine Workers of Amer- one in the recommended Order (see Hickmott Foods, Inc., 242 NLRB 1357 (1979)), and will conform the notice accordingly. 'All dates hereinafter are 1979 unless otherwise indicated. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel 4 nor the record as a whole 1. Delete paragraph l(a), reletter subsequent warrants a finding that Respondent's economic rea- paragraphs accordingly, and substitute the follow- sons were not genuine and served only to mask Re- ing for paragraph l(c): spondent's antiunion reasons. Respondent specifi- "(c) In any like or related manner interfering cally established the need for a layoff in the die with, restraining, or coercing employees in the ex- maintenance department-where Thomas was the ercise of the rights guaranteed them by Section 7 least senior and least experienced employee. of the Act." Further, as previously noted, Thomas engaged in 2. Delete paragraphs 2(a) and (b), and reletter substantial protected activities in March 1979. Ad- the subsequent paragraphs accordingly. ditionally, though not specifically alluded to by the 3. Substitute the attached notice for that of the Administrative Law Judge, Thomas' leafletting of Administrative Law Judge. November 26 did not constitute the first time heAPPENDIX enaged in such activity. Rather, Thomas acknowl- edged that, after March 1979, he had leafletted and NOTICE To EMPLOYEES posted union notices on six or seven occasions at POSTED BY ORDER OF THE Respondent's gate as well as in the shop. However, NATIONAL LABOR RELATIONS BOARD his employment was not adversely affected by his An Agency of the United States Government earlier protected activities and, in fact, he subse- quently received the transfer he had requested. After a hearing at which all sides had an opportu- This factor, to an extent, undercuts the General nity to present evidence and state their positions, Counsel's contention that Respondent was motivat- the National Labor Relations Board found that we ed by antipathy to Thomas' protected activities, have violated the National Labor Relations Act, as and bolsters Respondent's economic defense. amended, and has ordered us to post this notice. The General Counsel has the burden of proving, The Act gives employees the following rights: by a preponderance of the credited evidence, that a respondent acted on the basis of improper motiva- T o formge in self-organization tion in disciplining or discharging an alleged discri- T o fo rm , -i0 , o r ass ist ^y un io n minatee. In light of Respondent's unrebutted show- T o bargain collectively through repre- ing that legitimate business considerations caused it sentatives of their own choice to lay off Thomas, the General Counsel failed to T o engage in activities together for the carry the burden of proof, and thus the complaint purpose of collective bargaining or other must be dismissed as to the alleged 8(a)(3) violation m u t u a l aid o r protection in the layoff of Thomas. 5 T o re fr a in f ro m the exercise of any or all such activities. ORDER Accordingly, we give you these assurances: Pursuant to Section 10(c) of the National Labor WE WILL NOT tell you to keep a low profile Relations Act, as amended, the National Labor Re- regarding the exercise of any of the rights de- lations Board adopts as its Order the recommended scribed above. Order of the Administrative Law Judge, as modi- WE WILL NOT in any like or related manner fied below, and hereby orders that the Respondent, interfere with, restrain, or coerce any of you Magnesium Casting Company, Inc., Hyde Park, because you engage, or refuse to engage, in Massachusetts, its officers, agents, successors, and any of the protected activities described at the assigns, shall take the action set forth in the said top of this notice. recommended Order, as so modified: MAGNESIUM CASTING COMPANY, Unlike the Administrative Law Judge, we find no basis in the record INC. for concluding that Respondent's reasons for selecting November 27 as the date for Thomas' layoff were "unconvincing." The Administrative Law Judge surmised that Respondent's permitting the need for layoff in DECISION die maintenance to become "critical" would demonstrate a lack of "busi- ness acumen" by Respondent's officials. However, it was not shown that NORMAN ZANKEL, Administrative Law Judge: This Thomas' layoff was decided upon or implemented in a fashion or manner c a se w a s heard before me on June 24 and 25, 1980 in different from Respondent's other numerous layoffs. We would not--on Boston, Massachusetts. the basis that it showed a lack of "business acumen"-question the date Upon a charge filed on November 29. 1979,1 by selected by Responden t for the layoff.a UntdEetilRiondMcneWrrsfAmr o We will also substitute a narrow cease-and-desist order for the broadUnited Electrical, Radio and Machine Workers of Amer- one in the recommended Order (see Hickmott Foods, Inc., 242 NLRB 1357 (1979)), and will conform the notice accordingly. All dates hereinafter are 1979 unless otherwise indicated. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel 4 nor the record as a whole 1. Delete paragraph l(a), reletter subsequent warrants a finding that Respondent's economic rea- paragraphs accordingly, and substitute the follow- sons were not genuine and served only to mask Re- ing for paragraph l(c): spondent's antiunion reasons. Respondent specifi- "(c) In any like or related manner interfering cally established the need for a layoff in the die with, restraining, or coercing employees in the ex- maintenance department-where Thomas was the ercise of the rights guaranteed them by Section 7 least senior and least experienced employee. of the Act." Further, as previously noted, Thomas engaged in 2. Delete paragraphs 2(a) and (b), and reletter substantial protected activities in March 1979. Ad- the subsequent paragraphs accordingly. ditionally, though not specifically alluded to by the 3. Substitute the attached notice for that of the Administrative Law Judge, Thomas' leafletting of Administrative Law Judge. November 26 did not constitute the first time heAPPENDIX enaged in such activity. Rather, Thomas acknowl- edged that, after March 1979, he had leafletted and NOTICE To EMPLOYEES posted union notices on six or seven occasions at POSTED BY ORDER OF THE Respondent's gate as well as in the shop. However, NATIONAL LABOR RELATIONS BOARD his employment was not adversely affected by his An Agency of the United States Government earlier protected activities and, in fact, he subse- quently received the transfer he had requested. After a hearing at which all sides had an opportu- This factor, to an extent, undercuts the General nity to present evidence and state their positions, Counsel's contention that Respondent was motivat- the National Labor Relations Board found that we ed by antipathy to Thomas' protected activities, have violated the National Labor Relations Act, as and bolsters Respondent's economic defense. amended, and has ordered us to post this notice. The General Counsel has the burden of proving, The Act gives employees the following rights: by a preponderance of the credited evidence, that a respondent acted on the basis of improper motiva- T o form, j n self-organization tion in disciplining or discharging an alleged discri- T o fo rm , -i0 , o r ass ist ^y un io n minatee. In light of Respondent's unrebutted show- T o bargain collectively through repre- ing that legitimate business considerations caused it sentatives of their own choice to lay off Thomas, the General Counsel failed to T o engage in activities together for the carry the burden of proof, and thus the complaint purpose of collective bargaining or other must be dismissed as to the alleged 8(a)(3) violation m u t u a l aid o r protection in the layoff of Thomas. 5 T o re fr a in f ro m the exercise of any or all such activities. ORDER Accordingly, we give you these assurances: Pursuant to Section 10(c) of the National Labor WE WILL NOT tell you to keep a low profile Relations Act, as amended, the National Labor Re- regarding the exercise of any of the rights de- lations Board adopts as its Order the recommended scribed above. Order of the Administrative Law Judge, as modi- WE WILL NOT in any like or related manner fied below, and hereby orders that the Respondent, interfere with, restrain, or coerce any of you Magnesium Casting Company, Inc., Hyde Park, because you engage, or refuse to engage, in Massachusetts, its officers, agents, successors, and any of the protected activities described at the assigns, shall take the action set forth in the said top of this notice. recommended Order, as so modified: MAGNESIUM CASTING COMPANY, Unlike the Administrative Law Judge, we find no basis in the record INC. for concluding that Respondent's reasons for selecting November 27 as the date for Thomas' layoff were "unconvincing." The Administrative Law Judge surmised that Respondent's permitting the need for layoff in DECISION die maintenance to become "critical" would demonstrate a lack of "busi- ness acumen" by Respondent's officials. However, it was not shown that NORMAN ZANKEL, Administrative Law Judge: This Thomas' layoff was decided upon or implemented in a fashion or manner c a se w a s heard before me on June 24 and 25, 1980 in different from Respondent's other numerous layoffs. We would not--on Boston, Massachusetts. the basis that it showed a lack of "business acumen"-question the date Upon a charge filed on November 29. 1979,1 by selected by Responden t for the layoff.a UntdEetilRiondMcneWrrsfAmr o We will also substitute a narrow cease-and-desist order for the broadUnited Electrical, Radio and Machine Workers of Amer- one in the recommended Order (see Hickmott Foods, Inc., 242 NLRB 1357 (1979)), and will conform the notice accordingly. All dates hereinafter are 1979 unless otherwise indicated. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the General Counsel 4 nor the record as a whole 1. Delete paragraph l(a), reletter subsequent warrants a finding that Respondent's economic rea- paragraphs accordingly, and substitute the follow- sons were not genuine and served only to mask Re- ing for paragraph l(c): spondent's antiunion reasons. Respondent specifi- "(c) In any like or related manner interfering cally established the need for a layoff in the die with, restraining, or coercing employees in the ex- maintenance department-where Thomas was the ercise of the rights guaranteed them by Section 7 least senior and least experienced employee. of the Act." Further, as previously noted, Thomas engaged in 2. Delete paragraphs 2(a) and (b), and reletter substantial protected activities in March 1979. Ad- the subsequent paragraphs accordingly. ditionally, though not specifically alluded to by the 3. Substitute the attached notice for that of the Administrative Law Judge, Thomas' leafletting of Administrative Law Judge. November 26 did not constitute the first time heAPPENDIX enaged in such activity. Rather, Thomas acknowl- edged that, after March 1979, he had leafletted and NOTICE To EMPLOYEES posted union notices on six or seven occasions at POSTED BY ORDER OF THE Respondent's gate as well as in the shop. However, NATIONAL LABOR RELATIONS BOARD his employment was not adversely affected by his An Agency of the United States Government earlier protected activities and, in fact, he subse- quently received the transfer he had requested. After a hearing at which all sides had an opportu- This factor, to an extent, undercuts the General nity to present evidence and state their positions, Counsel's contention that Respondent was motivat- the National Labor Relations Board found that we ed by antipathy to Thomas' protected activities, have violated the National Labor Relations Act, as and bolsters Respondent's economic defense. amended, and has ordered us to post this notice. The General Counsel has the burden of proving, The Act gives employees the following rights: by a preponderance of the credited evidence, that a respondent acted on the basis of improper motiva- T o form, j n self-organization tion in disciplining or discharging an alleged discri- T o fo rm , -i0 , o r ass ist ^y un io n minatee. In light of Respondent's unrebutted show- T o bargain collectively through repre- ing that legitimate business considerations caused it sentatives of their own choice to lay off Thomas, the General Counsel failed to T o engage in activities together for the carry the burden of proof, and thus the complaint purpose of collective bargaining or other must be dismissed as to the alleged 8(a)(3) violation m u t u a l aid o r protection in the layoff of Thomas. 5 T o re fr a in f ro m the exercise of any or all such activities. ORDER Accordingly, we give you these assurances: Pursuant to Section 10(c) of the National Labor WE WILL NOT tell you to keep a low profile Relations Act, as amended, the National Labor Re- regarding the exercise of any of the rights de- lations Board adopts as its Order the recommended scribed above. Order of the Administrative Law Judge, as modi- WE WILL NOT in any like or related manner fied below, and hereby orders that the Respondent, interfere with, restrain, or coerce any of you Magnesium Casting Company, Inc., Hyde Park, because you engage, or refuse to engage, in Massachusetts, its officers, agents, successors, and any of the protected activities described at the assigns, shall take the action set forth in the said top of this notice. recommended Order, as so modified: MAGNESIUM CASTING COMPANY, Unlike the Administrative Law Judge, we find no basis in the record INC. for concluding that Respondent's reasons for selecting November 27 as the date for Thomas' layoff were "unconvincing." The Administrative Law Judge surmised that Respondent's permitting the need for layoff in DECISION die maintenance to become "critical" would demonstrate a lack of "busi- ness acumen" by Respondent's officials. However, it was not shown that NORMAN ZANKEL, Administrative Law Judge: This Thomas' layoff was decided upon or implemented in a fashion or manner c a se w a s heard before me on June 24 and 25, 1980 in different from Respondent's other numerous layoffs. We would not--on Boston, Massachusetts. the basis that it showed a lack of "business acumen"-question the date Upon a charge filed on November 29. 1979,1 by selected by Responden t for the layoff.a UntdEetilRiondMcneWrrsfAmr o We will also substitute a narrow cease-and-desist order for the broadUnited Electrical, Radio and Machine Workers of Amer- one in the recommended Order (see Hickmott Foods, Inc., 242 NLRB 1357 (1979)), and will conform the notice accordingly. All dates hereinafter are 1979 unless otherwise indicated. MAGNESIUM CASTING COMPANY, INC. 421 ica (UE) Local 262 (the Union), Robert S. Fuchs, Re- 11. THE ALLEGED UNFAIR LABOR PRACTICES gional Director for Region 1 of the National Labor Rela- tions Board, issued a complaint and notice of hearing on A. Background January 18, 1980, against Magnesium Casting Company, Thomas began working for Respondent on October 2, Inc. (Respondent). 2 1978. He worked continuously until November 27, 1979. The complaint alleges that Respondent engaged in vio- On the latter date, Thomas was laid off. lations of Section 8(a)(1) and (3) of the National Labor Thomas as a i a il Relations Act, as amended (the Act). Specifically, it is al- T h o m as w o rk ed as a d ie -a t m ac hin e reqes tor leged that Respondent interfered with, restrained, and 197 9 H e w as th en transferred, at hs request, to a coerced its employees by warning an employee, Law- die maintenance job. rence Thomas, to keep a "low profile" in his union activ- As a die-cast machine operator, Thomas was paid ities, and discriminatorily laid off Thomas on November $4.69 per hour, plus an incentive rate of 125 percent. He 27. received a $5-per-hour wage rate upon transfer. Thomas' Respondent filed a timely answer to the complaint. wage rate was $5.43 per hour at the time of his layoff. The answer admitted certain matters but denied the sub- There is a distinction between die-cast maintenance stantive allegations and that Respondent committed any and die maintenance. The former involves operation of unfair labor practice. die-cast machines. The latter job requires an employee to All parties appeared at the hearing. Each was repre- work on the dies which are placed into the die-cast ma- sented by counsel and was afforded full opportunity to chines. Thus, die maintenance work includes such func- be heard, to introduce and meet material evidence, to ex- tions as changing, repairing, painting, cleaning, and stor- amine and cross-examine witnesses, to present oral argu- ing dies. ment, and to file briefs. I have carefully considered the For at least 2 years before the incidents herein, only contents of the briefs filed on behalf of the General one or two employees regularly had been assigned to Counsel and Respondent. work in the die maintenance department. In February, a Upon consideration of the entire record and the briefs, third employee, Gartman, was added to that department. and my observation of the witnesses and their demeanor, Gartman worked in that department until the week I make the following: ending July 22. Gartman then quit. Throughout the spring and early summer, Thomas FINDINGS AND CONCLUSIONS made several requests of Respondent's personnel man- ager, Ray Nichols, for transfer into die maintenance. 1. JURISDICTION Thomas was transferred to replace Gartman. Respondent, a Massachusetts corporation, maintained In March, Thomas was a leader of a brief work stop- its principal office and place of business in Hyde Park, page of the die-cast maintenance employees. Those em- Massachusetts, at all material times. At that location, Re- ployees stopped working to protest a change in Re- spondent, at all material times, has been engaged in the spondent's computation of the incentive rate and elimina- manufacture, sale, and distribution of castings, electrical tion of relief personnel. Thomas was a spokesman for the fixtures, and related products. employees who stopped work. He met with Die-Cast In the course of its business, Respondent caused large Manager Mal Emack to discuss the problems. quantities of metal used by it in its manufacturing process On January 5, 1978, a Board complaint issued against to be purchased and transported in interstate commerce Respondent. The complaint alleges Respondent had en- from and through various States of the United States gaged in unfair labor practices in violation of Section other than Massachusetts. During the calendar year im- 8(a)(l), (3), (4), and (5) of the Act. A hearing was con- mediately preceding issuance of the complaint, Respond- ducted by Administrative Law Judge Abraham Frank. ent derived gross revenue in excess of $50,000 from the On November 20, 1979, Administrative Law Judge sales of castings, electrical fixtures and related products Frank issued his decision. Respondent was found to have which it manufactured. 3 violated the Act by engaging in unlawful interrogation; Respondent admits, the record reflects, and I find it is threatening employees with plant closure, discharge, and engaged in commerce within the meaning of Section 2(6) other economic reprisals; creating impressions that em- and (7) of the Act. ployees' union activities were under surveillance by Re- The parties agree, the record reflects, and I find the spondent; suggesting to employees that they testify in Union is a labor organization within the meaning of Sec- Respondent's interest at a Board proceeding; threatening tion 2(5) of the Act. employees with severe punishment if they attended a Board hearing; coercively directing employees not to 'The caption of an earlier case (250 NLRB 692 (1980)) bears the des- sign union authorization cards; soliciting employees not ignation "Inc." in the employer's name. The pleadings in the instant case to sign union cards or attend union meetings; promising omit the corporate reference. Nonetheless, Respondent herein clearly is the same party as respondent in the matter decided by the Board. Assum- economic benefits contingent on defeat of the Union's or- ing the earlier case caption more directly identifies Respondent, I hereby ganizational efforts; promulgating and maintaining an un- amend the name of Respondent in the instant case to read "Magnesium lawful no-solicitation-distribution rule and discriminatori- Casting Company, Inc." ,.„ _ .,ly implementing it; discriminatorily discharging two ' The parties stipulated to the dollar volume of Respondent's business ii i iriiar by way of a post-trial written stipulation which is hereby received in evi- leading union adherents one of whom was the principal dence as ALJ Exh. . initiator of union activity; discriminatorily suspending MAGNESIUM CASTING COMPANY, INC. 421 ica (UE) Local 262 (the Union), Robert S. Fuchs, Re- 1n. THE ALLEGED UNFAIR LABOR PRACTICES gional Director for Region 1 of the National Labor Rela- tions Board, issued a complaint and notice of hearing on A. Background January 18, 1980, against Magnesium Casting Company, T m bg w Respondent on October 2, inc. (Respondent). 2 1978. He worked continuously until November 27, 1979. The complaint alleges that Respondent engaged in vio- On the latter date, Thomas was laid off. lations of Section 8(a)(l) and (3) of the National Labor o mas wor kd as a ast m n r: Relations Act, as amended (the Act). Specifically, it is al- J T ho m as w o r k ed as a d n e - rr a ed t m ac htn eh psrqet un to leged that Respondent interfered with, restrained, and diman 197 9 n H e w as j t h en tobferred, at his request, to a coerced its employees by warning an employee, Law- Adie maintenance job. rence Thomas, to keep a "low profile" in his union activ- A s a ^-^ machine operator, Thomas was paid ities, and discriminatorily laid off Thomas on November $4 .69 per h o u r , plus an incentive rate of 125 percent. He 27. received a $5-per-hour wage rate upon transfer. Thomas' Respondent filed a timely answer to the complaint. wage rate was $5.43 per hour at the time of his layoff. The answer admitted certain matters but denied the sub- T h er e is a distinction between die-cast maintenance stantive allegations and that Respondent committed any a nd d ie maintenance. The former involves operation of unfair labor practice. die-cast machines. The latter job requires an employee to All parties appeared at the hearing. Each was repre- w o rk on t h e d ie s w h i ch are placed into the die-cast ma- sented by counsel and was afforded full opportunity to chines. Thus, die maintenance work includes such func- be heard, to introduce and meet material evidence, to ex- tions as changing, repairing, painting, cleaning, and stor- amine and cross-examine witnesses, to present oral argu- in" d ies. ment, and to file briefs. I have carefully considered the For at least 2 years before the incidents herein, only contents of the briefs filed on behalf of the General one or two employees regularly had been assigned to Counsel and Respondent. work in the die maintenance department. In February, a Upon consideration of the entire record and the briefs, third employee, Gartman, was added to that department. and my observation of the witnesses and their demeanor, Gartman worked in that department until the week I make the following: ending July 22. Gartman then quit. Throughout the spring and early summer, Thomas FINDINGS AND CONCLUSIONS made several requests of Respondent's personnel man- ager, Ray Nichols, for transfer into die maintenance. 1. JURISDICTION Thomas was transferred to replace Gartman. Respondent, a Massachusetts corporation, maintained In March, Thomas was a leader of a brief work stop- its principal office and place of business in Hyde Park, page of the die-cast maintenance employees. Those em- Massachusetts, at all material times. At that location, Re- ployees stopped working to protest a change in Re- spondent, at all material times, has been engaged in the spondent's computation of the incentive rate and elimina- manufacture, sale, and distribution of castings, electrical tion of relief personnel. Thomas was a spokesman for the fixtures, and related products. employees who stopped work. He met with Die-Cast In the course of its business, Respondent caused large Manager Mal Emack to discuss the problems. quantities of metal used by it in its manufacturing process On January 5, 1978, a Board complaint issued against to be purchased and transported in interstate commerce Respondent. The complaint alleges Respondent had en- from and through various States of the United States gaged in unfair labor practices in violation of Section other than Massachusetts. During the calendar year im- 8(a)(l), (3), (4), and (5) of the Act. A hearing was con- mediately preceding issuance of the complaint, Respond- ducted by Administrative Law Judge Abraham Frank. ent derived gross revenue in excess of $50,000 from the On November 20, 1979, Administrative Law Judge sales of castings, electrical fixtures and related products Frank issued his decision. Respondent was found to have which it manufactured. 3 violated the Act by engaging in unlawful interrogation; Respondent admits, the record reflects, and I find it is threatening employees with plant closure, discharge, and engaged in commerce within the meaning of Section 2(6) other economic reprisals; creating impressions that em- and (7) of the Act. ployees' union activities were under surveillance by Re- The parties agree, the record reflects, and I find the spondent; suggesting to employees that they testify in Union is a labor organization within the meaning of Sec- Respondent's interest at a Board proceeding; threatening tion 2(5) of the Act. employees with severe punishment if they attended a Board hearing; coercively directing employees not to 'The caption of an earlier case (250 NLRB 692 (1980)) bears the des- sign union authorization cards; soliciting employees not ignation "Inc." in the employer's name. The pleadings in the instant case to sign union Cards Or attend union meetings; promising omit the corporate reference. Nonetheless, Respondent herein clearly is the same party as respondent in the matter decided by the Board. Assum- economic benefits contingent on defeat of the Union's or- ing the earlier case caption more directly identifies Respondent, I hereby ganizational efforts; promulgating and maintaining an un- amend the name of Respondent in the instant case to read "Magnesium lawful no-solicitation-distribution rule and discriminatori- Casting Company, Inc." ly implementing it; discriminatorily discharging two I The panics stipulated to the dollar volume of Respondent's business by way of a post-trial written stipulation which is hereby received in evi- leading Union adherents One of whom was the principal dence as ALJ Exh. 1. initiator of union activity; discriminatorily suspending MAGNESIUM CASTING COMPANY, INC. 421 ica (UE) Local 262 (the Union), Robert S. Fuchs, Re- 1n. THE ALLEGED UNFAIR LABOR PRACTICES gional Director for Region 1 of the National Labor Rela- tions Board, issued a complaint and notice of hearing on A. Background January 18, 1980, against Magnesium Casting Company, T m bg w Respondent on October 2, inc. (Respondent). 2 1978. He worked continuously until November 27, 1979. The complaint alleges that Respondent engaged in vio- On the latter date, Thomas was laid off. lations of Section 8(a)(l) and (3) of the National Labor o mas wor kd as a ast m n r: Relations Act, as amended (the Act). Specifically, it is al- J T ho m as w o r k ed as a d n e - rr a ed t m ac htn eh psrqet un to leged that Respondent interfered with, restrained, anddiman 197 9 n H e w as t h en transferred, at his request, to a coerced its employees by warning an employee, Law- Adie maintenance job. rence Thomas, to keep a "low profile" in his union activ- A s a die-cast machine operator, Thomas was paid ities, and discriminatorily laid off Thomas on November $4 .69 per h o u r , plus an incentive rate of 125 percent. He 27. received a $5-per-hour wage rate upon transfer. Thomas' Respondent filed a timely answer to the complaint. wage rate was $5.43 per hour at the time of his layoff. The answer admitted certain matters but denied the sub- T h er e is a distinction between die-cast maintenance stantive allegations and that Respondent committed any and die maintenance. The former involves operation of unfair labor practice. die-cast machines. The latter job requires an employee to All parties appeared at the hearing. Each was repre- w o rk on t h e dies which are placed into the die-cast ma- sented by counsel and was afforded full opportunity to chines. Thus, die maintenance work includes such func- be heard, to introduce and meet material evidence, to ex- tions as changing, repairing, painting, cleaning, and stor- amine and cross-examine witnesses, to present oral argu- in" dies. ment, and to file briefs. I have carefully considered the For at least 2 years before the incidents herein, only contents of the briefs filed on behalf of the General one or two employees regularly had been assigned to Counsel and Respondent. work in the die maintenance department. In February, a Upon consideration of the entire record and the briefs, third employee, Gartman, was added to that department. and my observation of the witnesses and their demeanor, Gartman worked in that department until the week I make the following: ending July 22. Gartman then quit. Throughout the spring and early summer, Thomas FINDINGS AND CONCLUSIONS made several requests of Respondent's personnel man- ager, Ray Nichols, for transfer into die maintenance. 1. JURISDICTION Thomas was transferred to replace Gartman. Respondent, a Massachusetts corporation, maintained In March, Thomas was a leader of a brief work stop- its principal office and place of business in Hyde Park, page of the die-cast maintenance employees. Those em- Massachusetts, at all material times. At that location, Re- ployees stopped working to protest a change in Re- spondent, at all material times, has been engaged in the spondent's computation of the incentive rate and elimina- manufacture, sale, and distribution of castings, electrical tion of relief personnel. Thomas was a spokesman for the fixtures, and related products. employees who stopped work. He met with Die-Cast In the course of its business, Respondent caused large Manager Mal Emack to discuss the problems. quantities of metal used by it in its manufacturing process On January 5, 1978, a Board complaint issued against to be purchased and transported in interstate commerce Respondent. The complaint alleges Respondent had en- from and through various States of the United States gaged in unfair labor practices in violation of Section other than Massachusetts. During the calendar year im- 8(a)(l), (3), (4), and (5) of the Act. A hearing was con- mediately preceding issuance of the complaint, Respond- ducted by Administrative Law Judge Abraham Frank. ent derived gross revenue in excess of $50,000 from the On November 20, 1979, Administrative Law Judge sales of castings, electrical fixtures and related products Frank issued his decision. Respondent was found to have which it manufactured. 3 violated the Act by engaging in unlawful interrogation; Respondent admits, the record reflects, and I find it is threatening employees with plant closure, discharge, and engaged in commerce within the meaning of Section 2(6) other economic reprisals; creating impressions that em- and (7) of the Act. ployees' union activities were under surveillance by Re- The parties agree, the record reflects, and I find the spondent; suggesting to employees that they testify in Union is a labor organization within the meaning of Sec- Respondent's interest at a Board proceeding; threatening tion 2(5) of the Act. employees with severe punishment if they attended a Board hearing; coercively directing employees not to 'The caption of an earlier case (250 NLRB 692 (1980)) bears the des- sign union authorization cards; soliciting employees not ignation "Inc." in the employer's name. The pleadings in the instant case to sign union Cards Or attend union meetings; promising omit the corporate reference. Nonetheless, Respondent herein clearly is the same party as respondent in the matter decided by the Board. Assum- economic benefits contingent on defeat of the Union's or- ing the earlier case caption more directly identifies Respondent, I hereby ganizational efforts; promulgating and maintaining an un- amend the name of Respondent in the instant case to read "Magnesium lawful no-solicitation-distribution rule and discriminatori- Casting Company, Inc." ly implementing it; discriminatorily discharging two I The panics stipulated to the dollar volume of Respondent's business by way of a post-trial written stipulation which is hereby received in evi- leading Union adherents One of whom was the principal dence as ALJ Exh. 1. initiator of union activity; discriminatorily suspending MAGNESIUM CASTING COMPANY, INC. 421 ica (UE) Local 262 (the Union), Robert S. Fuchs, Re- 1n. THE ALLEGED UNFAIR LABOR PRACTICES gional Director for Region 1 of the National Labor Rela- tions Board, issued a complaint and notice of hearing on A. Background January 18, 1980, against Magnesium Casting Company, T m bg w Respondent on October 2, inc. (Respondent). 2 1978. He worked continuously until November 27, 1979. The complaint alleges that Respondent engaged in vio- On the latter date, Thomas was laid off. lations of Section 8(a)(l) and (3) of the National Labor o mas wor kd as a ast m n r: Relations Act, as amended (the Act). Specifically, it is al- J T ho m as w o r k ed as a d n e - rr a ed t m ac htn eh psrqet un to leged that Respondent interfered with, restrained, and diman 197 9 n H e w as j t h en tobferred, at his request, to a coerced its employees by warning an employee, Law- Adie maintenance job. rence Thomas, to keep a "low profile" in his union activ- A s a die-cast machine operator, Thomas was paid ities, and discriminatorily laid off Thomas on November $4 .69 per h o u r , plus an incentive rate of 125 percent. He 27. received a $5-per-hour wage rate upon transfer. Thomas' Respondent filed a timely answer to the complaint. wage rate was $5.43 per hour at the time of his layoff. The answer admitted certain matters but denied the sub- T h er e is a distinction between die-cast maintenance stantive allegations and that Respondent committed any and die maintenance. The former involves operation of unfair labor practice. die-cast machines. The latter job requires an employee to All parties appeared at the hearing. Each was repre- w o rk on t h e dies which are placed into the die-cast ma- sented by counsel and was afforded full opportunity to chines. Thus, die maintenance work includes such func- be heard, to introduce and meet material evidence, to ex- tions as changing, repairing, painting, cleaning, and stor- amine and cross-examine witnesses, to present oral argu- in" dies. ment, and to file briefs. I have carefully considered the For at least 2 years before the incidents herein, only contents of the briefs filed on behalf of the General one or two employees regularly had been assigned to Counsel and Respondent. work in the die maintenance department. In February, a Upon consideration of the entire record and the briefs, third employee, Gartman, was added to that department. and my observation of the witnesses and their demeanor, Gartman worked in that department until the week I make the following: ending July 22. Gartman then quit. Throughout the spring and early summer, Thomas FINDINGS AND CONCLUSIONS made several requests of Respondent's personnel man- ager, Ray Nichols, for transfer into die maintenance. 1. JURISDICTION Thomas was transferred to replace Gartman. Respondent, a Massachusetts corporation, maintained In March, Thomas was a leader of a brief work stop- its principal office and place of business in Hyde Park, page of the die-cast maintenance employees. Those em- Massachusetts, at all material times. At that location, Re- ployees stopped working to protest a change in Re- spondent, at all material times, has been engaged in the spondent's computation of the incentive rate and elimina- manufacture, sale, and distribution of castings, electrical tion of relief personnel. Thomas was a spokesman for the fixtures, and related products. employees who stopped work. He met with Die-Cast In the course of its business, Respondent caused large Manager Mal Emack to discuss the problems. quantities of metal used by it in its manufacturing process On January 5, 1978, a Board complaint issued against to be purchased and transported in interstate commerce Respondent. The complaint alleges Respondent had en- from and through various States of the United States gaged in unfair labor practices in violation of Section other than Massachusetts. During the calendar year im- 8(a)(l), (3), (4), and (5) of the Act. A hearing was con- mediately preceding issuance of the complaint, Respond- ducted by Administrative Law Judge Abraham Frank. ent derived gross revenue in excess of $50,000 from the On November 20, 1979, Administrative Law Judge sales of castings, electrical fixtures and related products Frank issued his decision. Respondent was found to have which it manufactured. 3 violated the Act by engaging in unlawful interrogation; Respondent admits, the record reflects, and I find it is threatening employees with plant closure, discharge, and engaged in commerce within the meaning of Section 2(6) other economic reprisals; creating impressions that em- and (7) of the Act. ployees' union activities were under surveillance by Re- The parties agree, the record reflects, and I find the spondent; suggesting to employees that they testify in Union is a labor organization within the meaning of Sec- Respondent's interest at a Board proceeding; threatening tion 2(5) of the Act. employees with severe punishment if they attended a Board hearing; coercively directing employees not to 'The caption of an earlier case (250 NLRB 692 (1980)) bears the des- sign union authorization cards; soliciting employees not ignation "Inc." in the employer's name. The pleadings in the instant case to sign union Cards Or attend union meetings; promising omit the corporate reference. Nonetheless, Respondent herein clearly is the same party as respondent in the matter decided by the Board. Assum- economic benefits contingent on defeat of the Union's or- ing the earlier case caption more directly identifies Respondent, I hereby ganizational efforts; promulgating and maintaining an un- amend the name of Respondent in the instant case to read "Magnesium lawful no-solicitation-distribution rule and discriminatori- Casting Company, Inc." ly implementing it; discriminatorily discharging two I The panics stipulated to the dollar volume of Respondent's business by way of a post-trial written stipulation which is hereby received in evi- leading Union adherents One of whom was the principal dence as ALJ Exh. 1. initiator of union activity; discriminatorily suspending 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees; discriminatorily giving employees less remu- employee he should keep a low profile regarding his nerative work; and denying them overtime. union activities. Administrative Law Judge Frank's findings and con- This allegation emanates from one of the conversations clusions have been affirmed by the Board.' Thus, the between Thomas and Nichols during which they dis- Board issued a cease-and-desist order addressed to the cussed the possibility of Thomas' transfer. Specifically, above violations and provided a remedy for the various Thomas testified that he and Nichols discussed those pos- instances of discriminatory conduct. Additionally, the sibilities sometime in June. According to Thomas, Nich- Board ordered Respondent to recognize and bargain ols told Thomas that transfer possibilities were good, but with the Union as exclusive representative of Respond- Thornton and Emack had reservations about Thomas ent's production and maintenance employees. Further, being a troublemaker. Thomas asserted Nichols said, the Board issued a broad proscriptive cease-and-desist "[I]t would be in his [Thomas'] best interest if he order. [Thomas] were to keep a low profile regarding union ac- On November 26, Thomas, two union organizers and tivities." Further, Thomas testified Nichols said he Leonard Lamkin distributed leaflets to employees would deny making such a statement. Finally, Thomas coming to work.5 Those leaflets announced the issuance claimed Nichols explained the term "troublemaker" re- of Administrative Law Judge Frank's decision. ferred to Thomas' various conversations with Mamber at Thomas testified that Plant Manager Harry C. Thorn- the plant gate ton drove by the gate during Thomas' leafleting activity Nichols testified he spoke with Thomas in June con- on November 26. Thornton testified he did not recall cerning the transfer. Nichols appeared as a witness on seeing Thomas at the gate that day. This testimonial con- behalf of Respondent. He recalled speaking with Thomas flict needs no resolution. The testimony of Union Orga- in June concerning the transfer. The complete text of nizer Philip Mamber remains uncontradicted that Thorn- Nichols' testimony regarding the alleged unlawful com- ton and other supervisors passed through the gate when ment follows: Thomas was engaged in distributing the Union's litera- ture. Mamber's testimony is that he saw SupervisorsQ (By Mr. Corcoran: Did you ever tell Mr n er i i Thornton at the Thomas that the possibility for a transfer looked Gangini and Herb Davis, in addition to Thornton at thethat Emack and Thornton had reserva- good but that Emack and Thornton had reserva- gate that morning. There is evidence that Thomas met ut mon a ronto de ae and spoke with Mamber at various times at the gate o n a b t m a tr mae i te since March. Thomas solicited other employees' signa-nance and thatt was n Thomas best nterest to tures on union authorization cards. However, that activi- keep a ow rofile regarding union activities? ty was negligible. He testified he signed up only three or A. Not really. Nobody's ever mentoned anything four employees. (The Union's organizing campaign tookabout being a troublemaker. He [Thomas] was place in 1977. See 250 NLRB 692.) This was before n ev e r k n o w n as a troublemaker. [Emphasis sup- Thomas began to work for Respondent. Nonetheless, plied.] Thomas was outspoken at departmental meetings in his Q. Did you ever say that to Mr.-[Emphasis sup- pursuit of improved safety, health, and wage issues. plied]. Nichols presided at those meetings. A. No, I didn't. Q. And you never told Mr. Thomas that you B. Interference, Restraint, and Coercion deny ever having said that? [Emphasis supplied.] A. No. 1. Facts6 I credit Thomas. His account of the June conversation It is alleged that, sometime in June, Nichols interfered was direct, forthright, comprehensive, and inherently with, restrained, and coerced employees by telling an consistent. He narrated the substance of that conversa- tion with ease and in response to the general question, 250 NLRB 692. At the hearing, I denied the General Counsel's re- "[W]hat happened next and when?" Regarding credibil- quest that I take official notice of Administrative Law Judge Frank's de- cision. On July 17, 1980, after the instant hearing closed, the Board issued ity, Thomas' response to my question about the subject its Decision and Order upon Administrative Law Judge Frank's decision. conversation was impressive. Specifically, I asked wheth- In her post-hearing brief, counsel for the General Counsel renewed her er Thomas had responded to Nichols' alleged unlawful former requests. It is now proper for me to take official notice of the motivation. Thomas answered he told Nichols that "as prior case. Delchamps. Inc., 234 NLRB 262 (1978); West Point Manufac- turing Company. Wellington Mill Division, 142 NLRB 1161, fn. 3 (1963); long as I did my job I had the right to associate with Plant City Welding and Tank Company, 123 NLRB 1146, 1150 (1959). whatever people I wanted to and get involved in what- ' Judge Frank found Lamkin was "the employee primarily responsible ever kind of activities I felt was important to do." I con- for initiating the Union's organizational drive." The Board adopted Ad- sider this response entirely consistent with Thomas' de- ministrative Law Judge Frank's conclusion that Lamkin had been discri-ti t i i . t r minatorily discharged. Thus, the Board ordered that Lamkin (among of what was said by Nchols. It bears the mark others) be offered immediate and full reinstatement and be made whole of probity. Clearly, Thomas is a vigorous union propo- for all losses incurred as a result of the discriminatory discharge. nent. The response he claimed he gave Nichols may be a The recitation of facts relevant to the allegations of independent expected from one whose union advocacy has been chal- 8(aXl) violations and those pertaining to Thomas' alleged discriminatory enged. Moreover, Nichos, who testified after Thomas, layoff are a composite of factual stipulations, unrefuted oral testimony, nged. Moreover, Nichols, who testified after Thomas, supporting documents and other undisputed evidence. For the sake of brevity, only those facts deemed material are set forth. Not every bit of with all arguments of counsel. Omitted matter is considered irrelevant or evidence is discussed. Nonetheless, I have considered all of it together superfluous. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees; discriminatorily giving employees less remu- employee he should keep a low profile regarding his nerative work; and denying them overtime. union activities. Administrative Law Judge Frank's findings and con- This allegation emanates from one of the conversations elusions have been affirmed by the Board.' Thus, the between Thomas and Nichols during which they dis- Board issued a cease-and-desist order addressed to the cussed the possibility of Thomas' transfer. Specifically, above violations and provided a remedy for the various Thomas testified that he and Nichols discussed those pos- instances of discriminatory conduct. Additionally, the sibilities sometime in June. According to Thomas, Nich- Board ordered Respondent to recognize and bargain ols told Thomas that transfer possibilities were good, but with the Union as exclusive representative of Respond- Thornton and Emack had reservations about Thomas ent's production and maintenance employees. Further, being a troublemaker. Thomas asserted Nichols said, the Board issued a broad proscriptive cease-and-desist "[I]t would be in his [Thomas'] best interest if he order. [Thomas] were to keep a low profile regarding union ac- On November 26, Thomas, two union organizers and tivities." Further, Thomas testified Nichols said he Leonard Lamkin distributed leaflets to employees would deny making such a statement. Finally, Thomas coming to work.5 Those leaflets announced the issuance claimed Nichols explained the term "troublemaker" re- of Administrative Law Judge Frank's decision. ferred to Thomas' various conversations with Mamber at Thomas testified that Plant Manager Harry C. Thorn- t h e plant gate. ton drove by the gate during Thomas' leafleting activity Nichols testified he spoke with Thomas in June con- on November 26. Thornton testified he did not recall cerning the transfer. Nichols appeared as a witness on seeing Thomas at the gate that day. This testimonial con- behalf of Respondent. He recalled speaking with Thomas flict needs no resolution. The testimony of Union Orga- in J u n e concerning the transfer. The complete text of nizer Philip Mamber remains uncontradicted that Thorn- Nichols' testimony regarding the alleged unlawful com- ton and other supervisors passed through the gate when m e n t follows: Thomas was engaged in distributing the Union's litera-Q.(yM.C ) e tell Mr. ture. Mamber's testimony is that he saw Supervisors Q (y r.C coa Dd oueetelM ture Marber' tesimon isthathe sw SuerviorsThomas that the possibility for a transfer looked Gangini and Herb Davis, in addition to Thornton at the g ood bu t t ha Pmack a or a raserva- gate that morning. There is evidence that Thomas mettin b u t m ovn a tu ornto d mane- and spoke with Mamber at various times at the gate tno n s a bo u t m o i v tn a troublemaker into die mamte- since March. Thomas solicited other employees' signa- tures on union authorization cards. However, that activi-kp a o w Profile regarding union activities? ty was negligible. He testified he signed up only three or A. N o t r ea lly. Nobody' s e v er m en tio ned an y t h ing four employees. (The Union's organizing campaign took ab o u t be ing a troublemaker. He [Thomas] was place in 1977. See 250 NLRB 692.) This was before n ev e r k n o w n as a troublemaker. [Emphasis sup- Thomas began to work for Respondent. Nonetheless, pli ed .] Thomas was outspoken at departmental meetings in his Q. D id y o u ev e r s ay t ha t t o Mr.-[Emphasis sup- pursuit of improved safety, health, and wage issues. plied]. Nichols presided at those meetings. A. N o , I didn't. Q. And you never told Mr. Thomas that you B. Interference, Restraint, and Coercion deny ever having said that? [Emphasis supplied.] A. No. 1. Facts" I credit Thomas. His account of the June conversation It is alleged that, sometime in June, Nichols interfered was direct, forthright, comprehensive, and inherently with, restrained, and coerced employees by telling an consistent. He narrated the substance of that conversa- tion with ease and in response to the general question, 250 NLRB 692. At the hearing, I d en ie d th e G ene r al Counsel's re- "[w]hat happened next and when?" Regarding credibil- quest that I take official notice of Administrative Law Judge Frank's de- cision. On July 17, 1980, after the instant hearing closed, the Board issued ity, Thomas' response to my question about the subject its Decision and Order upon Administrative Law Judge Frank's decision. conversation was impressive. Specifically, I asked wheth- In her post-hearing brief, counsel for the General Counsel renewed her er Thomas had responded to Nichols' alleged unlawful former requests. It is now proper for me to take official notice of the motivation. Thomas answered he told Nichols that "as prior case. Dekhamps^ Inc., 234 NLRB 262 (1978); West Point Manufac- turing Company. Wellington Mill Division, 142 NLRB 1161, fn. 3 (1963); long a s I did my job I had the right to associate With Plant City Welding and Tank Company, 123 NLRB 1146, 1150(1959). whatever people I wanted to and get involved in what- ' Judge Frank found Lamkin was "the employee primarily responsible ever kind of activities I felt Was important to do." I con- for initiating the Union's organizational drive." The Board adopted Ad- sider this response entirely consistent with Thomas' de- ministrative Law Judge Frank's conclusion that Lamkin had been discri- scription of what was said by Nichols. It bears the mark minatorily discharged. Thus, the Board ordered that Lamkin (among others) be offered immediate and full reinstatement and be made whole of probity. Clearly, Thomas is a Vigorous union propo- for all losses incurred as a result of the discriminatory discharge. nent. The response he claimed he gave Nichols may be * The recitation of facts relevant to the allegations of independent expected from one whose union advocacy has been chal- 8(a)l) violations and those pertaining to Thomas' alleged discriminatory , i. », ,i , . ..,- , ,. T-- layoff are a composite of factual stipulations, unrefuted oral testimony, lnged. Moreover, Nichols, who testified after Thomas, supporting documents and other undisputed evidence. For the sake of brevity, only those facts deemed material are set forth. Not every bit of with all arguments of counsel. Omitted matter is considered irrelevant or evidence is discussed. Nonetheless, I have considered all of it together superfluous. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees; discriminatorily giving employees less remu- employee he should keep a low profile regarding his nerative work; and denying them overtime. union activities. Administrative Law Judge Frank's findings and con- This allegation emanates from one of the conversations elusions have been affirmed by the Board.' Thus, the between Thomas and Nichols during which they dis- Board issued a cease-and-desist order addressed to the cussed the possibility of Thomas' transfer. Specifically, above violations and provided a remedy for the various Thomas testified that he and Nichols discussed those pos- instances of discriminatory conduct. Additionally, the sibilities sometime in June. According to Thomas, Nich- Board ordered Respondent to recognize and bargain ols told Thomas that transfer possibilities were good, but with the Union as exclusive representative of Respond- Thornton and Emack had reservations about Thomas ent's production and maintenance employees. Further, being a troublemaker. Thomas asserted Nichols said, the Board issued a broad proscriptive cease-and-desist "[I]t would be in his [Thomas'] best interest if he order. [Thomas] were to keep a low profile regarding union ac- On November 26, Thomas, two union organizers and tivities." Further, Thomas testified Nichols said he Leonard Lamkin distributed leaflets to employees would deny making such a statement. Finally, Thomas coming to work.5 Those leaflets announced the issuance claimed Nichols explained the term "troublemaker" re- of Administrative Law Judge Frank's decision. ferred to Thomas' various conversations with Mamber at Thomas testified that Plant Manager Harry C. Thorn- t h e plant gate. ton drove by the gate during Thomas' leafleting activity Nichols testified he spoke with Thomas in June con- on November 26. Thornton testified he did not recall cerning the transfer. Nichols appeared as a witness on seeing Thomas at the gate that day. This testimonial con- behalf of Respondent. He recalled speaking with Thomas flict needs no resolution. The testimony of Union Orga- in J u n e concerning the transfer. The complete text of nizer Philip Mamber remains uncontradicted that Thorn- Nichols' testimony regarding the alleged unlawful com- ton and other supervisors passed through the gate when m e n t follows: Thomas was engaged in distributing the Union's litera-Q.(yM.C ) e tell Mr. ture. Mamber's testimony is that he saw Supervisors Q (y r.C coa Dd oueetelM ture Marber' tesimon isthathe sw SuerviorsThomas that the possibility for a transfer looked Gangini and Herb Davis, in addition to Thornton at the g ood bu t t ha Pmack a or a raserva- gate that morning. There is evidence that Thomas mettin b u t m ovn a tu ornto d mane- and spoke with Mamber at various times at the gate tno n s a bo u t m o i v tn a troublemaker into die mamte- since March. Thomas solicited other employees' signa- tures on union authorization cards. However, that activi-kp a o w Profile regarding union activities? ty was negligible. He testified he signed up only three or A. N o t r ea lly. Nobody' s e v er m en tio ned an y t h ing four employees. (The Union's organizing campaign took ab o u t be ing a troublemaker. He [Thomas] was place in 1977. See 250 NLRB 692.) This was before n ev e r k n o w n as a troublemaker. [Emphasis sup- Thomas began to work for Respondent. Nonetheless, pli ed .] Thomas was outspoken at departmental meetings in his Q. D id y o u ev e r s ay t ha t t o Mr.-[Emphasis sup- pursuit of improved safety, health, and wage issues. plied]. Nichols presided at those meetings. A. N o , I didn't. Q. And you never told Mr. Thomas that you B. Interference, Restraint, and Coercion deny ever having said that? [Emphasis supplied.] A. No. 1. Facts" I credit Thomas. His account of the June conversation It is alleged that, sometime in June, Nichols interfered was direct, forthright, comprehensive, and inherently with, restrained, and coerced employees by telling an consistent. He narrated the substance of that conversa- tion with ease and in response to the general question, 250 NLRB 692. At the hearing, I d en ie d th e G ene r al Counsel's re- "[w]hat happened next and when?" Regarding credibil- quest that I take official notice of Administrative Law Judge Frank's de- cision. On July 17, 1980, after the instant hearing closed, the Board issued ity, Thomas' response to my question about the subject its Decision and Order upon Administrative Law Judge Frank's decision. conversation was impressive. Specifically, I asked wheth- In her post-hearing brief, counsel for the General Counsel renewed her er Thomas had responded to Nichols' alleged unlawful former requests. It is now proper for me to take official notice of the motivation. Thomas answered he told Nichols that "as prior case. Delhamps^ Inc., 234 NLRB 262 (1978); West Point Manufac- turing Company. Wellington Mill Division, 142 NLRB 1161, fn. 3 (1963); long a s I did my job I had the right to associate With Plant City Welding and Tank Company, 123 NLRB 1146, 1150(1959). whatever people I wanted to and get involved in what- ' Judge Frank found Lamkin was "the employee primarily responsible ever kind of activities I felt Was important to do." I con- for initiating the Union's organizational drive." The Board adopted Ad- sider this response entirely consistent with Thomas' de- ministrative Law Judge Frank's conclusion that Lamkin had been discri- scription of what was said by Nichols. It bears the mark minatorily discharged. Thus, the Board ordered that Lamkin (among others) be offered immediate and full reinstatement and be made whole of probity. Clearly, Thomas is a Vigorous union propo- for all losses incurred as a result of the discriminatory discharge. nent. The response he claimed he gave Nichols may be * The recitation of facts relevant to the allegations of independent expected from one whose union advocacy has been chal- 8(a)l) violations and those pertaining to Thomas' alleged discriminatory , i. », ,i , . ..,- , ,. T-- layoff are a composite of factual stipulations, unrefuted oral testimony, lnged. Moreover, Nichols, who testified after Thomas, supporting documents and other undisputed evidence. For the sake of brevity, only those facts deemed material are set forth. Not every bit of with all arguments of counsel. Omitted matter is considered irrelevant or evidence is discussed. Nonetheless, I have considered all of it together superfluous. 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees; discriminatorily giving employees less remu- employee he should keep a low profile regarding his nerative work; and denying them overtime. union activities. Administrative Law Judge Frank's findings and con- This allegation emanates from one of the conversations elusions have been affirmed by the Board.' Thus, the between Thomas and Nichols during which they dis- Board issued a cease-and-desist order addressed to the cussed the possibility of Thomas' transfer. Specifically, above violations and provided a remedy for the various Thomas testified that he and Nichols discussed those pos- instances of discriminatory conduct. Additionally, the sibilities sometime in June. According to Thomas, Nich- Board ordered Respondent to recognize and bargain ols told Thomas that transfer possibilities were good, but with the Union as exclusive representative of Respond- Thornton and Emack had reservations about Thomas ent's production and maintenance employees. Further, being a troublemaker. Thomas asserted Nichols said, the Board issued a broad proscriptive cease-and-desist "[I]t would be in his [Thomas'] best interest if he order. [Thomas] were to keep a low profile regarding union ac- On November 26, Thomas, two union organizers and tivities." Further, Thomas testified Nichols said he Leonard Lamkin distributed leaflets to employees would deny making such a statement. Finally, Thomas coming to work.5 Those leaflets announced the issuance claimed Nichols explained the term "troublemaker" re- of Administrative Law Judge Frank's decision. ferred to Thomas' various conversations with Mamber at Thomas testified that Plant Manager Harry C. Thorn- t h e plant gate. ton drove by the gate during Thomas' leafleting activity Nichols testified he spoke with Thomas in June con- on November 26. Thornton testified he did not recall cerning the transfer. Nichols appeared as a witness on seeing Thomas at the gate that day. This testimonial con- behalf of Respondent. He recalled speaking with Thomas flict needs no resolution. The testimony of Union Orga- in J u n e concerning the transfer. The complete text of nizer Philip Mamber remains uncontradicted that Thorn- Nichols' testimony regarding the alleged unlawful com- ton and other supervisors passed through the gate when m e n t follows: Thomas was engaged in distributing the Union's litera-Q.(yM.C ) e tell Mr. ture. Mamber's testimony is that he saw Supervisors Q (y r.C coa Dd oueetelM ture Marber' tesimon isthathe sw SuerviorsThomas that the possibility for a transfer looked Gangini and Herb Davis, in addition to Thornton at the g ood bu t t ha Pmack a or a raserva- gate that morning. There is evidence that Thomas mettin b u t m ovn a tu ornto d mane- and spoke with Mamber at various times at the gate tno n s a bo u t m o i v tn a troublemaker into die mamte- since March. Thomas solicited other employees' signa- tures on union authorization cards. However, that activi-kp a o w Profile regarding union activities? ty was negligible. He testified he signed up only three or A. N o t r ea lly. Nobody' s e v er m en tio ned an y t h ing four employees. (The Union's organizing campaign took ab o u t be ing a troublemaker. He [Thomas] was place in 1977. See 250 NLRB 692.) This was before n ev e r k n o w n as a troublemaker. [Emphasis sup- Thomas began to work for Respondent. Nonetheless, pli ed .] Thomas was outspoken at departmental meetings in his Q. D id y o u ev e r s ay t ha t t o Mr.-[Emphasis sup- pursuit of improved safety, health, and wage issues. plied]. Nichols presided at those meetings. A. N o , I didn't. Q. And you never told Mr. Thomas that you B. Interference, Restraint, and Coercion deny ever having said that? [Emphasis supplied.] A. No. 1. Facts" I credit Thomas. His account of the June conversation It is alleged that, sometime in June, Nichols interfered was direct, forthright, comprehensive, and inherently with, restrained, and coerced employees by telling an consistent. He narrated the substance of that conversa- tion with ease and in response to the general question, 250 NLRB 692. At the hearing, I d en ie d th e G ene r al Counsel's re- "[w]hat happened next and when?" Regarding credibil- quest that I take official notice of Administrative Law Judge Frank's de- cision. On July 17, 1980, after the instant hearing closed, the Board issued ity, Thomas' response to my question about the subject its Decision and Order upon Administrative Law Judge Frank's decision. conversation was impressive. Specifically, I asked wheth- In her post-hearing brief, counsel for the General Counsel renewed her er Thomas had responded to Nichols' alleged unlawful former requests. It is now proper for me to take official notice of the motivation. Thomas answered he told Nichols that "as prior case. Dekhamps^ Inc., 234 NLRB 262 (1978); West Point Manufac- turing Company. Wellington Mill Division, 142 NLRB 1161, fn. 3 (1963); long a s I did my job I had the right to associate With Plant City Welding and Tank Company, 123 NLRB 1146, 1150(1959). whatever people I wanted to and get involved in what- ' Judge Frank found Lamkin was "the employee primarily responsible ever kind of activities I felt Was important to do." I con- for initiating the Union's organizational drive." The Board adopted Ad- sider this response entirely consistent with Thomas' de- ministrative Law Judge Frank's conclusion that Lamkin had been discri- scription of what was said by Nichols. It bears the mark minatorily discharged. Thus, the Board ordered that Lamkin (among others) be offered immediate and full reinstatement and be made whole of probity. Clearly, Thomas is a Vigorous union propo- for all losses incurred as a result of the discriminatory discharge. nent. The response he claimed he gave Nichols may be * The recitation of facts relevant to the allegations of independent expected from one whose union advocacy has been chal- 8(a)l) violations and those pertaining to Thomas' alleged discriminatory , i. », ,i , . ..,- , ,. T-- layoff are a composite of factual stipulations, unrefuted oral testimony, lnged. Moreover, Nichols, who testified after Thomas, supporting documents and other undisputed evidence. For the sake of brevity, only those facts deemed material are set forth. Not every bit of with all arguments of counsel. Omitted matter is considered irrelevant or evidence is discussed. Nonetheless, I have considered all of it together superfluous. MAGNESIUM CASTING COMPANY, INC. 423 was not asked to deny that Thomas responded to the al- moted Respondent's course of conduct which was held leged unlawful remark or to give a different version of by the Board to be egregious. Such predisposition indi- Thomas' response. Thus, Thomas' account is uncontra- cates that Nichols, subjectively, understood that vigorous dieted. pursuit of union activities by employees might hinder I find Nichols vague, equivocal, and selective in his their employment opportunities. In this context, it is logi- testimony of the June conversation with Thomas. Thus, cal that he would have cautioned Thomas in the manner as the above transcript abstract shows, Nichols answered depicted by Thomas. "not really" to a multifaceted question regarding the Upon all the foregoing, I find that, sometime in June, conversation. Nichols' response then only was directed Nichols told Thomas he should keep a low profile re- toward whether he made reference to Thomas as a trou- garding his union activities. blemaker. Next, Respondent's counsel asked, "Did you ever say that to Mr.-"(Emphasis supplied.) Nichols' 2. Analysis reply, "No, I didn't," is rendered meaningless because he presented by the independent 8(a)() alle- prevented counsel from completing the question by inter- gation is whether Nichols' remark reasonably tends to rupting him and because the ambiguity appearing by have a proscribed effect. Hanes Hosiery, Inc., 219 NLRB virtue of the italicized word creates uncertainty as to just opoan 199 NLR what it is that Nichols sought to deny. Finally, Nichols (1972) as rons oNico 268, 271 (1972). Thomas' response to Nichols reflects he ended his testimony of the conversation with a plain self- h oeer hos was unshaken by what Nichols said. However, Thomas' serving denial. Even the final denial was in response to a reaction is irrelevant. El Rancho Market, 235 NLRB 468, rather ambiguous question.471 (1978). In its totality, Nichols' testimony of the subject con- versation falls short of controverting the more lucid and I conclude Nichols' words impart fear that Thomas straightforward version of Thomas. Indeed, careful scru- mgh not be graed hs requested ransfer because he tiny of Nichols' account shows he did not explicitly deny was activeon behalf of the Union The clear implication he made the alleged "low profile" comment. of Nichols' comment is that continued union activities by he made the alleged "low profile" comment. In crediting Thomas over Nichols, I am not unmindful Thomas would prevent or impede his transfer. In Fetzer of evidence tending to show discrepancies in Thomas' Broadcasnng Company, 227 NLRB 1377, 1380 (1977) an testimony. Most noteworthy is Thomas' initial assertion employer was held to have violated Section 8(a)() when that the only time he distributed leaflets at Respondent's its plant manager warned nonstriking employees they gate was on November 26. During Thomas' cross-exami- "would just be jeopardizing [themselves]" by associating nation, he conceded his pretrial affidavit reflects he had with stkers or pickets. Herein, Nichols issued an analo- engaged in such distribution "on six or seven occasions gous warning. In effect, he was warning Thomas his * . . since March. ." I consider this testimonial vari- transfer request was in jeopardy because of his union ac- . .sice Marc. " Icosiderthisestimnialtivities. The evidence shows that, at that time, Nichols ation of slight value. It does not detract from Thomas' tivtiesThe evidence shows that, at that time, Nichols overall credibility. A trier of fact is not required to be- knewThomas union actvtes consisted association lieve the entirety of a witness' testimony. Maximum Pre- with Mamber at Respondent's gate. Thus, it is virtually cision Metal Products, Inc., Renault Stamping Ltd., 236 inescapable that Nichols' words connote a fear and ap- NLRB 1417 (1978). The stark specific differences in the prehension that continued union activity could be detri- respective presentations of Thomas and Nichols regard- mental to Thomas' reuest for transfer Nichols' status as ing the June conversation is the more accurate indicator a superviso a aagent of Respondent is undisputed. Ac- of the relative veracity of those witnesses. cordingly, his activities are imputable to Respondent. Finally, I find it plausible and likely that Nichols made Upon the foregoing, I find that Respondent violated the remarks attributed to him. The June conversation Section 8(aX1) of the Act by Nichols' telling Thomas, centered around Thomas' previous transfer requests. At sometime in June, he should keep a low profile regarding the time of the conversation, Gartman, whom Thomas his union activities. replaced, was still employed. Thus, whether Thomas Thff would be transferred was still in doubt. During cross-ex- amination, Nichols was asked whether he saw Thomas at . Facts the gate speaking with Mamber. Nichols answered, "There's a very good possibility, yes." All these circum- During the morning of November 27, Emack walked stances make it probable Nichols would have counseled through the die maintenance department. Thomas and Thomas in the manner asserted by the General Counsel. employee Richard Courtois, Sr., were present. Courtois Nichols virtually admitted knowledge of, and concern had been in Respondent's employ for 26 years. He had for, Thomas' association with Mamber. This conclusion been a die maintenance employee for the past 19 years. is enhanced by reference to the Board decision of which Since his transfer into die maintenance, Thomas was I have taken official notice. In the earlier case, Nichols being trained by Courtois. was found to have unlawfully created an impression that While in the die maintenance department, Emack re- the employees' union activities were under surveillance. marked die maintenance employees were not busy and Though not dispositive of the issue, I consider Nichols' there was not enough work to do. previous unlawful conduct a relevant factor in assessing After lunch on November 27, Thomas was called into his conduct herein. The Board left undisputed Adminis- Emack's office. There, Emack told Thomas he was laid trative Law Judge Frank's conclusion that Nichols pro- off. Thomas testified, without contradiction, he asked MAGNESIUM CASTING COMPANY, INC. 423 was not asked to deny that Thomas responded to the al- moted Respondent's course of conduct which was held leged unlawful remark or to give a different version of by the Board to be egregious. Such predisposition indi- Thomas' response. Thus, Thomas' account is uncontra- cates that Nichols, subjectively, understood that vigorous dieted. pursuit of union activities by employees might hinder I find Nichols vague, equivocal, and selective in his their employment opportunities. In this context, it is logi- testimony of the June conversation with Thomas. Thus, cal that he would have cautioned Thomas in the manner as the above transcript abstract shows, Nichols answered depicted by Thomas. "not really" to a multifaceted question regarding the Upon all the foregoing, I find that, sometime in June, conversation. Nichols' response then only was directed Nichols told Thomas he should keep a low profile re- toward whether he made reference to Thomas as a trou- garding his union activities. blemaker. Next, Respondent's counsel asked, "Did you ever say that to Mr.-"(Emphasis supplied.) Nichols' 2. Analysis reply, "No, I didn't," is rendered meaningless because he T presented by the independent 8(a)(l) alle- prevented counsel from completing the question by inter- gation is whether Nichols' remark reasonably tends to rupting him and because the ambiguity appearing by have a proscribed effect. Hanes Hosiery, Inc., 219 NLRB virtue of the italicized word creates uncertainty as to just 3 1 I D Corporation, 199 NLRB what it is that Nichols sought to deny. Finally, Nichols 2 (1972) Thomas' response toNichols reflects he ended his testimony of the conversation with a plain self- wa u b wa N However, Thomas' serving denial. Even the final denial was in response to a reaction is irrelevant. El Rancho Market, 235 NLRB 468, rather ambiguous question.471 C1978t In its totality, Nichols' testimony of the subject con- I cnl . N w i f t . omas versation falls short of controverting the more lucid and mg c o nc ud e N t c h o le s w o r d s rq pesd f ea r th a t T h o m as straightforward version of Thomas. Indeed, careful scru- wst o n b e hal of h e uestedcrar iecation tiny of Nichols' account shows he did not explicitly deny w as ac t lv e o n b eh a lf o f t h e U n l o n. T h e c l ea r im pl c a tio n tiny of Nichols' account shows he dfid" not explicitlydeny of Nichols' comment is that continued union activities by he made the alleged "low profile" comment.To wu p o r is r I r In crediting Thomas over Nichols, I am not unmindful B T ho m a s w o u l d pany,22 o r NpB17 h 1 s 0 t ra n s f er . I n9 F 77 r of evidence tending to show discrepancies in Thomas' eroadcysrwng Companyh 227 NLRB 1377, 1380 (a977)1 an testimony. Most noteworthy is Thomas' initial assertion ipts w as h el d t o h av ed lated Section 8(a)(l) when that the only time he distributed leaflets at Respondent's "os pldjus m an age r w ara ed iing[heking employees they gate was on November 26. During Thomas' cross-exami- wi w ou l d .str b e Jeopardizing [themselves]s by associating nation, he conceded his pretrial affidavit reflects he had wg th s t ank e r s o r peff , H er e w n s Nichols issued an analo- engaged in such distribution "on six or seven occasions gous warning. In effect, he was warning Thomas his ensince March. ... b I consider this testimonial vari- t r an s f er request was in jeopardy because of his union ac- . .. sice arc. .. . I onsderthi tetimnia vai- tivities. The evidence shows that, at that time, Nichols ation of slight value. It does not detract from Thomas' knew The unioncishows consist of a iaton overall credibility. A trier of fact is not required to be- w t hM m a t Reso n den t ' s gae hs i i s vit a l ly lieve the entirety of a witness' testimony. Maximum Pre- iw th Ma m be r at RNespoldent s gate. Thus, it is virtually cision Metal Products, Inc., Renault Stamping Ltd., 236 peescapable that Nccholsn words connote a fear and ap- NLRB 1417 (1978). The stark specific differences in the Prehension that continued union activity could be detau- respective presentations of Thomas and Nichols regard- m e nt al t o T h o m a s request for transfer. Nichols status as ing the June conversation is the more accurate indicator ac ipervisor and agent of Respondent is undisputed. Ac- of the relative veracity of those witnesses.cordmgly hisactivities are imputable to Respondent Finally, I find it plausible and likely that Nichols made Upon t h e foregoing, I find that Respondent violated the remarks attributed to him. The June conversation Sec tio n 8(aXD) of the Act by Nichols' telling Thomas, centered around Thomas' previous transfer requests. At sometime in June, he should keep a low profile regarding the time of the conversation, Gartman, whom Thomas his u"n o n activities. replaced, was still employed. Thus, whether ThomasC Tho 'Lryff would be transferred was still in doubt. During cross-ex- amination, Nichols was asked whether he saw Thomas at 1. Facts the gate speaking with Mamber. Nichols answered, "There's a very good possibility, yes." All these circum- During the morning of November 27, Emack walked stances make it probable Nichols would have counseled through the die maintenance department. Thomas and Thomas in the manner asserted by the General Counsel. employee Richard Courtois, Sr., were present. Courtois Nichols virtually admitted knowledge of, and concern had been in Respondent's employ for 26 years. He had for, Thomas' association with Mamber. This conclusion been a die maintenance employee for the past 19 years. is enhanced by reference to the Board decision of which Since his transfer into die maintenance, Thomas was I have taken official notice. In the earlier case, Nichols being trained by Courtois. was found to have unlawfully created an impression that While in the die maintenance department, Emack re- the employees' union activities were under surveillance. marked die maintenance employees were not busy and Though not dispositive of the issue, I consider Nichols' there was not enough work to do. previous unlawful conduct a relevant factor in assessing After lunch on November 27, Thomas was called into his conduct herein. The Board left undisputed Adminis- Emack's office. There, Emack told Thomas he was laid trative Law Judge Frank's conclusion that Nichols pro- off. Thomas testified, without contradiction, he asked MAGNESIUM CASTING COMPANY, INC. 423 was not asked to deny that Thomas responded to the al- moted Respondent's course of conduct which was held leged unlawful remark or to give a different version of by the Board to be egregious. Such predisposition indi- Thomas' response. Thus, Thomas' account is uncontra- cates that Nichols, subjectively, understood that vigorous dieted. pursuit of union activities by employees might hinder I find Nichols vague, equivocal, and selective in his their employment opportunities. In this context, it is logi- testimony of the June conversation with Thomas. Thus, cal that he would have cautioned Thomas in the manner as the above transcript abstract shows, Nichols answered depicted by Thomas. "not really" to a multifaceted question regarding the Upon all the foregoing, I find that, sometime in June, conversation. Nichols' response then only was directed Nichols told Thomas he should keep a low profile re- toward whether he made reference to Thomas as a trou- garding his union activities. blemaker. Next, Respondent's counsel asked, "Did you ever say that to Mr.-"(Emphasis supplied.) Nichols' 2. Analysis reply, "No, I didn't," is rendered meaningless because he T presented by the independent 8(a)(l) alle- prevented counsel from completing the question by inter- gation is whether Nichols' remark reasonably tends to rupting him and because the ambiguity appearing by have a proscribed effect. Hanes Hosiery, Inc., 219 NLRB virtue of the italicized word creates uncertainty as to just 3 1 I D Corporation, 199 NLRB what it is that Nichols sought to deny. Finally, Nichols 2 (1972) Thomas' response toNichols reflects he ended his testimony of the conversation with a plain self- wa u b wa N However, Thomas' serving denial. Even the final denial was in response to a reaction is irrelevant. El Rancho Market, 235 NLRB 468, rather ambiguous question.471 C1978t In its totality, Nichols' testimony of the subject con- I cnl . N w i f t . omas versation falls short of controverting the more lucid and mg c o nc ud e N t c h o le s w o r d s rq pesd f ea r th a t T h o m as straightforward version of Thomas. Indeed, careful scru- wst o n b e hal of he uestedcrar iecation tiny of Nichols' account shows he did not explicitly deny w as ac t lv e o n b eh a lf o f t h e U n l o n. T h e c l ea r im pl c a tio n tiny of Nichols' account shows he dfid" not explicitlydeny of Nichols' comment is that continued union activities by he made the alleged "low profile" comment.To wu p o r is r I r In crediting Thomas over Nichols, I am not unmindful B T ho m a s w o u l d pany,22 o r NpB17 h 1 s 0 t ra n s f er . I n9 F 77 r of evidence tending to show discrepancies in Thomas' eroadcysrwng Companyh 227 NLRB 1377, 1380 (a977)1 an testimony. Most noteworthy is Thomas' initial assertion ipts w as h el d t o h av ed lated Section 8(a)(l) when that the only time he distributed leaflets at Respondent's "os pldjus m an age r w ara ed ing striking employees they gate was on November 26. During Thomas' cross-exami- wi w ou l d .str b e Jeopardizing [themselves]s by associating nation, he conceded his pretrial affidavit reflects he had wg th s t ank e r s o r peff , H er e w n s Nichols issued an analo- engaged in such distribution "on six or seven occasions gous warning. In effect, he was warning Thomas his ensince March. ... b I consider this testimonial vari- t r an s f er request was in jeopardy because of his union ac- . .. sice arc. .. . I onsderthi tetimnia vai- tivities. The evidence shows that, at that time, Nichols ation of slight value. It does not detract from Thomas' knew The unioncishows consist of a iaton overall credibility. A trier of fact is not required to be- w t hM m a t Reso n den t ' s gae hs i i s vit a l ly lieve the entirety of a witness' testimony. Maximum Pre- iw th Ma m be r at RNespoldent s gate. Thus, it is virtually cision Metal Products, Inc., Renault Stamping Ltd., 236 peescapable that Nccholsn words connote a fear and ap- NLRB 1417 (1978). The stark specific differences in the Prehension that continued union activity could be detau- respective presentations of Thomas and Nichols regard- m e nt al t o T h o m a s request for transfer. Nichols status as ing the June conversation is the more accurate indicator ac ipervisor and agent of Respondent is undisputed. Ac- of the relative veracity of those witnesses.cordmgly hisactivities are imputable to Respondent Finally, I find it plausible and likely that Nichols made Upon t h e foregoing, I find that Respondent violated the remarks attributed to him. The June conversation Sec tio n 8(aXD) of the Act by Nichols' telling Thomas, centered around Thomas' previous transfer requests. At sometime in June, he should keep a low profile regarding the time of the conversation, Gartman, whom Thomas his u"n o n activities. replaced, was still employed. Thus, whether ThomasC Tho 'Lryff would be transferred was still in doubt. During cross-ex- amination, Nichols was asked whether he saw Thomas at 1. Facts the gate speaking with Mamber. Nichols answered, "There's a very good possibility, yes." All these circum- During the morning of November 27, Emack walked stances make it probable Nichols would have counseled through the die maintenance department. Thomas and Thomas in the manner asserted by the General Counsel. employee Richard Courtois, Sr., were present. Courtois Nichols virtually admitted knowledge of, and concern had been in Respondent's employ for 26 years. He had for, Thomas' association with Mamber. This conclusion been a die maintenance employee for the past 19 years. is enhanced by reference to the Board decision of which Since his transfer into die maintenance, Thomas was I have taken official notice. In the earlier case, Nichols being trained by Courtois. was found to have unlawfully created an impression that While in the die maintenance department, Emack re- the employees' union activities were under surveillance. marked die maintenance employees were not busy and Though not dispositive of the issue, I consider Nichols' there was not enough work to do. previous unlawful conduct a relevant factor in assessing After lunch on November 27, Thomas was called into his conduct herein. The Board left undisputed Adminis- Emack's office. There, Emack told Thomas he was laid trative Law Judge Frank's conclusion that Nichols pro- off. Thomas testified, without contradiction, he asked MAGNESIUM CASTING COMPANY, INC. 423 was not asked to deny that Thomas responded to the al- moted Respondent's course of conduct which was held leged unlawful remark or to give a different version of by the Board to be egregious. Such predisposition indi- Thomas' response. Thus, Thomas' account is uncontra- cates that Nichols, subjectively, understood that vigorous dieted. pursuit of union activities by employees might hinder I find Nichols vague, equivocal, and selective in his their employment opportunities. In this context, it is logi- testimony of the June conversation with Thomas. Thus, cal that he would have cautioned Thomas in the manner as the above transcript abstract shows, Nichols answered depicted by Thomas. "not really" to a multifaceted question regarding the Upon all the foregoing, I find that, sometime in June, conversation. Nichols' response then only was directed Nichols told Thomas he should keep a low profile re- toward whether he made reference to Thomas as a trou- garding his union activities. blemaker. Next, Respondent's counsel asked, "Did you ever say that to Mr.-"(Emphasis supplied.) Nichols' 2. Analysis reply, "No, I didn't," is rendered meaningless because he T presented by the independent 8(a)(l) alle- prevented counsel from completing the question by inter- gation is whether Nichols' remark reasonably tends to rupting him and because the ambiguity appearing by have a proscribed effect. Hanes Hosiery, Inc., 219 NLRB virtue of the italicized word creates uncertainty as to just 3 1 I D Corporation, 199 NLRB what it is that Nichols sought to deny. Finally, Nichols 2 (1972) Thomas' response toNichols reflects he ended his testimony of the conversation with a plain self- wa u b wa N However, Thomas' serving denial. Even the final denial was in response to a reaction is irrelevant. El Rancho Market, 235 NLRB 468, rather ambiguous question.471 C1978t In its totality, Nichols' testimony of the subject con- I cnl . N w i f t . omas versation falls short of controverting the more lucid and mg c o nc ud e N t c h o le s w o r d s rq pesd f ea r th a t T h o m as straightforward version of Thomas. Indeed, careful scru- wst o n b e hal of he uestedcrar iecation tiny of Nichols' account shows he did not explicitly deny w as ac t lv e o n b eh a lf o f t h e U n l o n. T h e c l ea r im pl c a tio n tiny of Nichols' account shows he dfid" not explicitlydeny of Nichols' comment is that continued union activities by he made the alleged "low profile" comment.To wu p o r is r I r In crediting Thomas over Nichols, I am not unmindful B T ho m a s w o u l d mpany t o2 NpB17 h 1 s 0 t ra n s f er I n 7F e 7 r of evidence tending to show discrepancies in Thomas' eroadcysrwng Companyh 227 NLRB 1377, 1380 (a977)1 an testimony. Most noteworthy is Thomas' initial assertion ipts w as h el d t o h av ed lated Section 8(a)(l) when that the only time he distributed leaflets at Respondent's "os pul js m an age r w ara ed ing striking employees they gate was on November 26. During Thomas' cross-exami- wi w ou l d .str b e Jeopardizing [themselves]s by associating nation, he conceded his pretrial affidavit reflects he had wg th s t ank e r s o r peff , H er e w n s Nichols issued an analo- engaged in such distribution "on six or seven occasions gous warning. In effect, he was warning Thomas his ensince March. ... b I consider this testimonial vari- t r an s f er request was in jeopardy because of his union ac- . .. sice arc. .. . I onsderthi tetimnia vai- tivities. The evidence shows that, at that time, Nichols ation of slight value. It does not detract from Thomas' knew The unioncishows consist of a iaton overall credibility. A trier of fact is not required to be- w t hM m a t Reso n den t ' s gae hs i i s vit a l ly lieve the entirety of a witness' testimony. Maximum Pre- iw th Ma m be r at RNespoldent s gate. Thus, it is virtually cision Metal Products, Inc., Renault Stamping Ltd., 236 peescapable that Nccholsn words connote a fear and ap- NLRB 1417 (1978). The stark specific differences in the Prehension that continued union activity could be detau- respective presentations of Thomas and Nichols regard- m e nt al t o T h o m a s request for transfer. Nichols status as ing the June conversation is the more accurate indicator ac ipervisor and agent of Respondent is undisputed. Ac- of the relative veracity of those witnesses.cordmgly hisactivities are imputable to Respondent Finally, I find it plausible and likely that Nichols made Upon t h e foregoing, I find that Respondent violated the remarks attributed to him. The June conversation Sec tio n 8(aXD) of the Act by Nichols' telling Thomas, centered around Thomas' previous transfer requests. At sometime in June, he should keep a low profile regarding the time of the conversation, Gartman, whom Thomas his u"n o n activities. replaced, was still employed. Thus, whether ThomasC Tho 'Lryff would be transferred was still in doubt. During cross-ex- amination, Nichols was asked whether he saw Thomas at 1. Facts the gate speaking with Mamber. Nichols answered, "There's a very good possibility, yes." All these circum- During the morning of November 27, Emack walked stances make it probable Nichols would have counseled through the die maintenance department. Thomas and Thomas in the manner asserted by the General Counsel. employee Richard Courtois, Sr., were present. Courtois Nichols virtually admitted knowledge of, and concern had been in Respondent's employ for 26 years. He had for, Thomas' association with Mamber. This conclusion been a die maintenance employee for the past 19 years. is enhanced by reference to the Board decision of which Since his transfer into die maintenance, Thomas was I have taken official notice. In the earlier case, Nichols being trained by Courtois. was found to have unlawfully created an impression that While in the die maintenance department, Emack re- the employees' union activities were under surveillance. marked die maintenance employees were not busy and Though not dispositive of the issue, I consider Nichols' there was not enough work to do. previous unlawful conduct a relevant factor in assessing After lunch on November 27, Thomas was called into his conduct herein. The Board left undisputed Adminis- Emack's office. There, Emack told Thomas he was laid trative Law Judge Frank's conclusion that Nichols pro- off. Thomas testified, without contradiction, he asked 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emack if he could work the remainder of that week. Ac- Emack made the decision to lay off Thomas. Emack cording to Thomas, Emack rejected that suggestion. testified that layoffs are made on seniority when all other Thomas testified that Emack, instead, said his terminal factors are equal. In essence, Emack's determination who checks had already been prepared. Emack indicated should be laid off are based on his personal judgment of Thomas could leave the premises immediately, but overall competence of the employees. He engages in no would be paid for a full day's work. prescribed review of records. Thus, Emack testified, "I Respondent's records reveal the existence of a heavy have a pretty good idea of who the best man is." backlog of die maintenance work in July. As noted, Emack decided to lay off Thomas after consideration Gartman quit his die maintenance job during that month. of abilities and length of employment of the employees in Undisputedly, Thomas had been a competent worker. die maintenance. He particularly used the following fac- His transfer request was outstanding. Apparently, the tors as to Thomas: (a) the greater departmental seniority combination of these factors resulted in his transfer to of both Courtois and Mohammed, (b) the fact Mo- the die maintenance department. hammed was the sole second-shift die maintenance em- Before Thomas' transfer, Respondent began to reduce ployee, and (c) the fact Thomas was still in the learning its work force. Thus, between May and November 27, stages of die maintenance work and functioned as Cour- the total employee complement in the production and tois' helper. Emack testified a review of these elements maintenance unit was reduced from 246 to 158 employ- made Thomas "the logical man to go." ees. Thirty-three employees had been laid off between The record reflects Thomas had not been replaced. June 28 and November 27. Only Courtois and Mohammed worked in die mainte- The amount of work required in the die maintenance nance after Thomas' layoff until April 1980. Then, Mo- department is directly proportional to that available in hammed was promoted to foreman in die-cast mainte- the die-cast department. From May through November nance. Thomas was then offered reinstatement to replace there was a steady decline in die-cast man-hours worked. Mohammed. Thomas declined. Since then, Courtois re- During that time, those man-hours were reduced from mained the only die maintenance employee. 1,776 per week to 717 man-hours per week. Concurrently, the number of hours the die-cast ma- 2. Analysis chines were operating was reduced. Those hours were reduced to less than 600 per week from 931 hours during Respondent contends Thomas was laid off solely due to lack of die maintenance work. The General Counsel the week ending May 6. They sharply dropped from an t o ac k o f d e maintenance work The General Counsel average of 851 ours per week in May, to 802 hours per claims the asserted reason for the layoff is pretextual. week in June, to 735 hours per week in July, to 623 week in June, to 735 hours per week in July, to 623 Resolution of these positions is governed by the follow- hours per week in August, to 615 hours per week in Sep- ing applicable egal prnciples. tember, to 543 hours per week in October, and to 471 The General Counsel must prove certain elements to hours per week in November. establish a prima facie case of discrimination. Those ele- On October 12, seven die-cast machine operators were ments are that (1) the affected employee had engaged in laid off. At that time, a backlog of die maintenance work activity protected by the Act, (2) the Employer had existed. Courtois and Thomas worked in die maintenance knowledge of that activity, (3) the adverse personnel on the first shift. Keith Mohammed worked in die main- action imposed upon the employee was motivated by tenance on the second shift. Courtois' seniority was the union animus, and (4) that the discipline had the effect of greatest. Next, came Mohammed.7 encouraging or discouraging membership in a labor orga- Thornton testified he knew of the slowdown in die- nization. The General Counsel has the burden of proving cast operations. Thornton regularly monitored Respond- his case by a preponderance of the evidence. Gonic Man- ent's inventory. Based on his observations, Thornton ufacturing Company Division of Hampshire Woolen Com- "recommended" to his supervisors and departmental pany, 141 NLRB 201, 209 (1963)- managers that they effectuate an increase or decrease in The 8(a)(l) violations support findings of unlawful mo- production. It was left to the subordinate managerial offi- tivation. I have found that Respondent violated Section cials to implement Thornton's recommendations in the 8(a)(1) when Nichols told Thomas to keep a low profile way most appropriate to them. in his union activities. Assuming I am in error in that According to Thornton, it was not until November 26 finding, 8(a)(1) violations are not necessarily a require- that he personally saw the full extent of the reduction in ment of an 8(a)3) finding. "Actual motive, a state of die maintenance backlog. Thornton testified the reduc- mind, being the question, it is seldom that direct evi- tion was at "a critical stage." On that date, Thornton in- dence will be available that is not also self-serving. In structed Emack to reduce the overhead in die mainte- such case . . the trier of fact may infer motive from the nance. There is no direct evidence that Thornton specifi- total circumstances proved. ... If he finds that the cally directed Emack on the way this should be done. stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can There is evidence that two other individuals were working in die infer that the motive is one that the employer desires to maintenance on the first shift immediately preceding, and on the day of, conceal-at least where . . . the surrounding facts tend Thomas' layoff. I conclude that fact tangential, inasmuch as I credit Re- t reinforce that inference." Shattuck Denn Mining Cor- spondent's claim they were working there temporarily to set up shelving and their performance of regular die maintenance functions merely was poration (Iron King Branch) v. N.L.R.B., 362 F.2d 466, incidental to the reason for the temporary assignment. 470 (9th Cir. 1966). The Shattuck Denn principle was 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emack if he could work the remainder of that week. Ac- Emack made the decision to lay off Thomas. Emack cording to Thomas, Emack rejected that suggestion. testified that layoffs are made on seniority when all other Thomas testified that Emack, instead, said his terminal factors are equal. In essence, Emack's determination who checks had already been prepared. Emack indicated should be laid off are based on his personal judgment of Thomas could leave the premises immediately, but overall competence of the employees. He engages in no would be paid for a full day's work. prescribed review of records. Thus, Emack testified, "I Respondent's records reveal the existence of a heavy have a pretty good idea of who the best man is." backlog of die maintenance work in July. As noted, Emack decided to lay off Thomas after consideration Gartman quit his die maintenance job during that month. of abilities and length of employment of the employees in Undisputedly, Thomas had been a competent worker. die maintenance. He particularly used the following fac- His transfer request was outstanding. Apparently, the tors as to Thomas: (a) the greater departmental seniority combination of these factors resulted in his transfer to of both Courtois and Mohammed, (b) the fact Mo- the die maintenance department. hammed was the sole second-shift die maintenance em- Before Thomas' transfer, Respondent began to reduce ployee, and (c) the fact Thomas was still in the learning its work force. Thus, between May and November 27, stages of die maintenance work and functioned as Cour- the total employee complement in the production and tois' helper. Emack testified a review of these elements maintenance unit was reduced from 246 to 158 employ- made Thomas "the logical man to go." ees. Thirty-three employees had been laid off between The record reflects Thomas had not been replaced. June 28 and November 27. Only Courtois and Mohammed worked in die mainte- The amount of work required in the die maintenance nance after Thomas' layoff until April 1980. Then, Mo- department is directly proportional to that available in hammed was promoted to foreman in die-cast mainte- the die-cast department. From May through November nance. Thomas was then offered reinstatement to replace there was a steady decline in die-cast man-hours worked. Mohammed. Thomas declined. Since then, Courtois re- During that time, those man-hours were reduced from mained the only die maintenance employee. 1,776 per week to 717 man-hours per week. Concurrently, the number of hours the die-cast ma- 2. Analysis chines were operating was reduced. Those hours were Rp e o n ms idofslydu reduced to less than 600 per week from 931 hours during tesconde contends work. The Genel due the week ending May 6. They sharply dropped from an l aims the aseted an for the l ener tusl average of 851 hours per week in May, to 802 hours per c l al m s t h e a sse rt ed r eas on fo r t h e goe o f f e s pbyth f u al - week in June, to 735 hours per week in July, to 623 iResolution of lhese positions is governed by the f.llow- hours per week in August, to 615 hours per week in Sep- ingapphcable egal principles. tember, to 543 hours per week in October, and to 471 T h e General Counsel must prove certain elements to hours per week in November. establish a prima facie case of discrimination. Those ele- On October 12, seven die-cast machine operators were m en ts are that (1) the affected employee had engaged in laid off. At that time, a backlog of die maintenance work activity protected by the Act, (2) the Employer had existed. Courtois and Thomas worked in die maintenance knowledge of that activity, (3) the adverse personnel on the first shift. Keith Mohammed worked in die main- action imposed upon the employee was motivated by tenance on the second shift. Courtois' seniority was the un io n a n im u s, and (4) that the discipline had the effect of greatest. Next, came Mohammed. 7 encouraging or discouraging membership in a labor orga- Thornton testified he knew of the slowdown in die- nization. The General Counsel has the burden of proving cast operations. Thornton regularly monitored Respond- his case by a preponderance of the evidence. Gonic Man- ent's inventory. Based on his observations, Thornton ufacturing Company, Division of Hampshire Woolen Com- "recommended" to his supervisors and departmental pany, 1 4 1 NLRB 20 1, 20 9 (19 6 3). managers that they effectuate an increase or decrease in T h e 8(a)(l) violations support findings of unlawful mo- production. It was left to the subordinate managerial offi- tivation. I have found that Respondent violated Section cials to implement Thornton's recommendations in the 8(a)(l) when Nichols told Thomas to keep a low profile way most appropriate to them. i n h i s u n ion activities. Assuming I am in error in that According to Thornton, it was not until November 26 finding, 8(a)(l) violations are not necessarily a require- that he personally saw the full extent of the reduction in ment of an 8(aX3) finding. "Actual motive, a state of die maintenance backlog. Thornton testified the reduc- mi"d, being the question, it is seldom that direct evi- tion was at "a critical stage." On that date, Thornton in- dence will be available that is not also self-serving. In structed Emack to reduce the overhead in die mainte- su c h c a se . . . the trier of fact may infer motive from the nance. There is no direct evidence that Thornton specifi- total circumstances proved. ... If he finds that the cally directed Emack on the way this should be done. stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can 'There is evidence that two other individuals were working in die infer that the motive is One that the employer desires to maintenance on the first shift immediately preceding, and on the day of, conceal-at least where . . . the surrounding facts tend Thomas' layoff. I conclude that fact tangential, inasmuch as I credit Re- Q reinforce that inference." Shaftuck Denn Mining Cor- spondent's claim they were working there temporarily to set up shelving to r D D ini Cor- and their performance of regular die maintenance functions merely was poration (Iron King Branch) v. N.L.R.B., 362 F.2d 466, incidental to the reason for the temporary assignment. 470 (9th Cir. 1966). The Shattuck Denn principle was 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emack if he could work the remainder of that week. Ac- Emack made the decision to lay off Thomas. Emack cording to Thomas, Emack rejected that suggestion. testified that layoffs are made on seniority when all other Thomas testified that Emack, instead, said his terminal factors are equal. In essence, Emack's determination who checks had already been prepared. Emack indicated should be laid off are based on his personal judgment of Thomas could leave the premises immediately, but overall competence of the employees. He engages in no would be paid for a full day's work. prescribed review of records. Thus, Emack testified, "I Respondent's records reveal the existence of a heavy have a pretty good idea of who the best man is." backlog of die maintenance work in July. As noted, Emack decided to lay off Thomas after consideration Gartman quit his die maintenance job during that month. of abilities and length of employment of the employees in Undisputedly, Thomas had been a competent worker. die maintenance. He particularly used the following fac- His transfer request was outstanding. Apparently, the tors as to Thomas: (a) the greater departmental seniority combination of these factors resulted in his transfer to of both Courtois and Mohammed, (b) the fact Mo- the die maintenance department. hammed was the sole second-shift die maintenance em- Before Thomas' transfer, Respondent began to reduce ployee, and (c) the fact Thomas was still in the learning its work force. Thus, between May and November 27, stages of die maintenance work and functioned as Cour- the total employee complement in the production and tois' helper. Emack testified a review of these elements maintenance unit was reduced from 246 to 158 employ- made Thomas "the logical man to go." ees. Thirty-three employees had been laid off between The record reflects Thomas had not been replaced. June 28 and November 27. Only Courtois and Mohammed worked in die mainte- The amount of work required in the die maintenance nance after Thomas' layoff until April 1980. Then, Mo- department is directly proportional to that available in hammed was promoted to foreman in die-cast mainte- the die-cast department. From May through November nance. Thomas was then offered reinstatement to replace there was a steady decline in die-cast man-hours worked. Mohammed. Thomas declined. Since then, Courtois re- During that time, those man-hours were reduced from mained the only die maintenance employee. 1,776 per week to 717 man-hours per week. Concurrently, the number of hours the die-cast ma- 2. Analysis chines were operating was reduced. Those hours were Rp e o n ms idofslydu reduced to less than 600 per week from 931 hours during tesconde contends work. The Genel due the week ending May 6. They sharply dropped from an l aims the aseted an for the l ener tusl average of 851 hours per week in May, to 802 hours per c l al m s t h e a sse rt ed r eas on fo r t h e goe o f f e s pbyth f u al - week in June, to 735 hours per week in July, to 623 iResolution of lhese positions is governed by the f.llow- hours per week in August, to 615 hours per week in Sep- ingapphcable egal principles. tember, to 543 hours per week in October, and to 471 T h e General Counsel must prove certain elements to hours per week in November. establish a prima facie case of discrimination. Those ele- On October 12, seven die-cast machine operators were m en ts are that (1) the affected employee had engaged in laid off. At that time, a backlog of die maintenance work activity protected by the Act, (2) the Employer had existed. Courtois and Thomas worked in die maintenance knowledge of that activity, (3) the adverse personnel on the first shift. Keith Mohammed worked in die main- action imposed upon the employee was motivated by tenance on the second shift. Courtois' seniority was the un io n a n im u s, and (4) that the discipline had the effect of greatest. Next, came Mohammed. 7 encouraging or discouraging membership in a labor orga- Thornton testified he knew of the slowdown in die- nization. The General Counsel has the burden of proving cast operations. Thornton regularly monitored Respond- his case by a preponderance of the evidence. Gonic Man- ent's inventory. Based on his observations, Thornton ufacturing Company, Division of Hampshire Woolen Com- "recommended" to his supervisors and departmental pany, 1 4 1 NLRB 20 1, 20 9 (19 6 3). managers that they effectuate an increase or decrease in T h e 8(a)(l) violations support findings of unlawful mo- production. It was left to the subordinate managerial offi- tivation. I have found that Respondent violated Section cials to implement Thornton's recommendations in the 8(a)(l) when Nichols told Thomas to keep a low profile way most appropriate to them. i n his union activities. Assuming I am in error in that According to Thornton, it was not until November 26 finding, 8(a)(l) violations are not necessarily a require- that he personally saw the full extent of the reduction in ment of an 8(aX3) finding. "Actual motive, a state of die maintenance backlog. Thornton testified the reduc- mi"d, being the question, it is seldom that direct evi- tion was at "a critical stage." On that date, Thornton in- dence will be available that is not also self-serving. In structed Emack to reduce the overhead in die mainte- su c h c a se . . . the trier of fact may infer motive from the nance. There is no direct evidence that Thornton specifi- total circumstances proved. ... If he finds that the cally directed Emack on the way this should be done. stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can 'There is evidence that two other individuals were working in die infer that the motive is One that the employer desires to maintenance on the first shift immediately preceding, and on the day of, conceal-at least where . . . the surrounding facts tend Thomas' layoff. I conclude that fact tangential, inasmuch as I credit Re- Q reinforce that inference." Shaftuck Denn Mining Cor- spondent's claim they were working there temporarily to set up shelving to r D D ini Cor- and their performance of regular die maintenance functions merely was poration (Iron King Branch) v. N.L.R.B., 362 F.2d 466, incidental to the reason for the temporary assignment. 470 (9th Cir. 1966). The Shattuck Denn principle was 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Emack if he could work the remainder of that week. Ac- Emack made the decision to lay off Thomas. Emack cording to Thomas, Emack rejected that suggestion. testified that layoffs are made on seniority when all other Thomas testified that Emack, instead, said his terminal factors are equal. In essence, Emack's determination who checks had already been prepared. Emack indicated should be laid off are based on his personal judgment of Thomas could leave the premises immediately, but overall competence of the employees. He engages in no would be paid for a full day's work. prescribed review of records. Thus, Emack testified, "I Respondent's records reveal the existence of a heavy have a pretty good idea of who the best man is." backlog of die maintenance work in July. As noted, Emack decided to lay off Thomas after consideration Gartman quit his die maintenance job during that month. of abilities and length of employment of the employees in Undisputedly, Thomas had been a competent worker. die maintenance. He particularly used the following fac- His transfer request was outstanding. Apparently, the tors as to Thomas: (a) the greater departmental seniority combination of these factors resulted in his transfer to of both Courtois and Mohammed, (b) the fact Mo- the die maintenance department. hammed was the sole second-shift die maintenance em- Before Thomas' transfer, Respondent began to reduce ployee, and (c) the fact Thomas was still in the learning its work force. Thus, between May and November 27, stages of die maintenance work and functioned as Cour- the total employee complement in the production and tois' helper. Emack testified a review of these elements maintenance unit was reduced from 246 to 158 employ- made Thomas "the logical man to go." ees. Thirty-three employees had been laid off between The record reflects Thomas had not been replaced. June 28 and November 27. Only Courtois and Mohammed worked in die mainte- The amount of work required in the die maintenance nance after Thomas' layoff until April 1980. Then, Mo- department is directly proportional to that available in hammed was promoted to foreman in die-cast mainte- the die-cast department. From May through November nance. Thomas was then offered reinstatement to replace there was a steady decline in die-cast man-hours worked. Mohammed. Thomas declined. Since then, Courtois re- During that time, those man-hours were reduced from mained the only die maintenance employee. 1,776 per week to 717 man-hours per week. Concurrently, the number of hours the die-cast ma- 2. Analysis chines were operating was reduced. Those hours were Rp e o n ms idofslydu reduced to less than 600 per week from 931 hours during tesconde contends work. The Genel due the week ending May 6. They sharply dropped from an l aims the aseted an for the l ener tusl average of 851 hours per week in May, to 802 hours per c l a lm s t h e o d poson for the layoff is pretexfual. week in June, to 735 hours per week in July, to 623 iResolution of lhese positions is governed by the f.llow- hours per week in August, to 615 hours per week in Sep- ingapphcable egal principles. tember, to 543 hours per week in October, and to 471 T h e General Counsel must prove certain elements to hours per week in November. establish a prima facie case of discrimination. Those ele- On October 12, seven die-cast machine operators were m en ts are that (1) the affected employee had engaged in laid off. At that time, a backlog of die maintenance work activity protected by the Act, (2) the Employer had existed. Courtois and Thomas worked in die maintenance knowledge of that activity, (3) the adverse personnel on the first shift. Keith Mohammed worked in die main- action imposed upon the employee was motivated by tenance on the second shift. Courtois' seniority was the un io n a n im u s, and (4) that the discipline had the effect of greatest. Next, came Mohammed. 7 encouraging or discouraging membership in a labor orga- Thornton testified he knew of the slowdown in die- nization. The General Counsel has the burden of proving cast operations. Thornton regularly monitored Respond- his case by a preponderance of the evidence. Gonic Man- ent's inventory. Based on his observations, Thornton ufacturing Company, Division of Hampshire Woolen Com- "recommended" to his supervisors and departmental pany, 1 4 1 NLRB 20 1, 20 9 (19 6 3). managers that they effectuate an increase or decrease in T h e 8(a)(l) violations support findings of unlawful mo- production. It was left to the subordinate managerial offi- tivation. I have found that Respondent violated Section cials to implement Thornton's recommendations in the 8(a)(l) when Nichols told Thomas to keep a low profile way most appropriate to them. i n his union activities. Assuming I am in error in that According to Thornton, it was not until November 26 finding, 8(a)(l) violations are not necessarily a require- that he personally saw the full extent of the reduction in ment of an 8(aX3) finding. "Actual motive, a state of die maintenance backlog. Thornton testified the reduc- mi"d, being the question, it is seldom that direct evi- tion was at "a critical stage." On that date, Thornton in- dence will be available that is not also self-serving. In structed Emack to reduce the overhead in die mainte- su c h c a se . . . the trier of fact may infer motive from the nance. There is no direct evidence that Thornton specifi- total circumstances proved. ... If he finds that the cally directed Emack on the way this should be done. stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can 'There is evidence that two other individuals were working in die infer that the motive is One that the employer desires to maintenance on the first shift immediately preceding, and on the day of, conceal-at least where . . . the surrounding facts tend Thomas' layoff. I conclude that fact tangential, inasmuch as I credit Re- Q reinforce that inference." Shaftuck Denn Mining Cor- spondent's claim they were working there temporarily to set up shelving to r D D ini Cor- and their performance of regular die maintenance functions merely was poration (Iron King Branch) v. N.L.R.B., 362 F.2d 466, incidental to the reason for the temporary assignment. 470 (9th Cir. 1966). The Shattuck Denn principle was MAGNESIUM CASTING COMPANY, INC. 425 quoted with approval by the Board in Best Products ols' statement that Thomas should keep a low profile a Company, Inc., 236 NLRB 1024, 1025 (1978). violation of the Act. Second, Administrative Law Judge Support for a finding of unlawful motivation "is aug- Frank's decision, approved by the Board in 250 NLRB mented [when] the explanation of the [employer's con- 692, is replete with evidence of animus. The Board will duct] offered by the Respondent [does] not stand up take official notice of its own prior decisions which in- under scrutiny." N.LR.B. v. Bird Mach. Co., 161 F.2d volve the same parties and similar issues. Moulton Manu- 589, 592 (Ist Cir. 1947). facturing Company, 152 NLRB 196, 207 (1965). Thus, I The instant allegation requires me to determine, from take official notice the Board has approved Administra- the totality of evidence, whether the asserted reason for tive Law Judge Frank's findings. Moreover, the Board Thomas' layoff actually motivated it. Signal Delivery agreed with Administrative Law Judge Frank's conclu- Service, Inc., 226 NLRB 843 (1976). sion the unfair labor practices committed by Respondent Undeniably, there is ample record evidence Thomas warranted a broad cease-and-desist order. There is no had been engaged in a variety of protected activity. evidence in the instant record to show any alteration in Thus, he was a leader of the walkout in March and a Respondent's position regarding union activities of its spokesman for other employees, he was vocal regarding employees from that exhibited in the cases before Ad- working conditions during departmental meetings, and, ministrative Law Judge Frank. finally, he engaged in distribution of leaflets on behalf of The General Counsel's claim that Respondent's de- the Union on November 26. In any event, Respondent fense is a pretext poses a close question. Respondent's does not seriously argue an evidentiary failure of this able counsel adduced considerable evidence in support of primafacie element. Respondent's economic defense. That unrefuted evidence Respondent's knowledge of Thomas' protected activity includes impressive elements of proof. Additionally, is disputed. Emack and Thornton disclaimed they saw there are other significant factors which militate in favor Thomas leafleting on November 26. Thomas and of finding merit to Respondent's contentions: Mamber testified Thornton went through the gate during (a) Thus, though Thomas was an employee leader the leafleting. I credit them. When asked whether he saw dur h ah wok stoa Respondent later Thomas At thegateonNovember26,Thorntonwa during the March work stoppage, Respondent later Thomas at the gate on November 26, Thornton was granted his transfer request. This reduces the strength of equivocal. He responded, "I do not recall seeing him Respondent was motivated by antipa- [Thomas] at the gate." There was only one gate to Re- h toward protect spondent's plant. Given Respondent's concern over the thy toward protected act vit s. union activities of its employees manifested by its earlier (b) Historically, the first shift in the die maintenance violations (250 NLRB 692), it is unlikely the leafleting department regularly was staffed by Courtois as the only activities of November 26 and the participants in it employee working there This fact supports Respondents would have gone unnoticed. Accordingly, I infer Re- claim that no more than one employee was needed spondent had direct knowledge of Thomas' leafleting ac- during a period of reduced backlog. tivities on November 26. (c) The evidence establishes the need for a layoff in Assuming, arguendo, Thornton is credited, there is die maintenance. Since June, Respondent engaged in a other evidence of Respondent's knowledge. Thus, other program of staff reduction. The backlog in die mainte- supervisors, such as Gangini, passed through the gate nance which existed at Thomas' transfer virtually had during the leafleting. Gangini was Thomas' immediate been diminished. Thomas was only I of 33 employees supervisor. Gangini did not testify at the hearing. In laid off during the implementation of the overall pro- these circumstances, it is reasonable to infer, as I do, that gram to reduce the production and maintenance work Gangini's testimony would have been adverse to Re- force. Indeed, the General Counsel concedes the exist- spondent had he testified. Interstate Circuit. Inc., et aL v. ence of Respondent's premise of staff reduction. United States, 306 U.S. 208 (1939); Monahan Ford Corpo- (d) The decision that Thomas would be the employee ration of Flushing, 173 NLRB 204 (1968); Crow Cravel to be laid off apparently was made in conformity with Co., 168 NLRB 1040, 1047 (1967). preexisting and customary standards. Thus, where com- As to knowledge, the parties have focused their argu- petency was not in question, seniority governed layoffs. ments on the November 26 activities. However, my con- Undeniably, Thomas was both the least senior and expe- clusions are predicated on the entire record. I cannot iso- rienced die maintenance employee. late Thomas' earlier activities. Accordingly, I further (e) No one was hired to replace Thomas. This fact conclude that Nichols' unlawful remark to Thomas in lends support to Respondent's claim that the reduced June is additional evidence that Respondent knew of workload in die maintenance necessitated a layoff. Thomas' union activities. Still further evidence of (f) When Mohammed was promoted, Thomas was of- Thomas' protected activities exists by virtue of Emack's fered reinstatement. This fact has some slight impact participation in a conversation with Thomas as spokes- upon the existence of Respondent's animus. man for the other employees who walked out in March (g) Respondent was consistent. No attempt has been and also from Thomas' vocal expressions concerning made to provide a variety (shifting) of reasons for its working conditions in Nichols' presence, during depart- action against Thomas. At his terminal interview, mental meetings. Thomas was advised by Emack that his layoff was for I conclude that the General Counsel has established lack of work. Also, Emack told Thomas he might be re- the requisite element of antiunion hostility. Two bases called if business improved. The documentary evidence are present for this conclusion. First, I have found Nich- (payroll change form) confirms Emack's testimony in MAGNESIUM CASTING COMPANY, INC. 425 quoted with approval by the Board in Best Products ols' statement that Thomas should keep a low profile a Company, Inc., 236 NLRB 1024, 1025 (1978). violation of the Act. Second, Administrative Law Judge Support for a finding of unlawful motivation "is aug- Frank's decision, approved by the Board in 250 NLRB mented [when] the explanation of the [employer's con- 692, is replete with evidence of animus. The Board will duct] offered by the Respondent [does] not stand up take official notice of its own prior decisions which in- under scrutiny." N.LR.B. v. Bird Mach. Co., 161 F.2d volve the same parties and similar issues. Moulton Manu- 589, 592 (1st Cir. 1947). facturing Company, 152 NLRB 196, 207 (1965). Thus, I The instant allegation requires me to determine, from take official notice the Board has approved Administra- the totality of evidence, whether the asserted reason for tive Law Judge Frank's findings. Moreover, the Board Thomas' layoff actually motivated it. Signal Delivery agreed with Administrative Law Judge Frank's conclu- Service, Inc., 226 NLRB 843 (1976). sion the unfair labor practices committed by Respondent Undeniably, there is ample record evidence Thomas warranted a broad cease-and-desist order. There is no had been engaged in a variety of protected activity. evidence in the instant record to show any alteration in Thus, he was a leader of the walkout in March and a Respondent's position regarding union activities of its spokesman for other employees, he was vocal regarding employees from that exhibited in the cases before Ad- working conditions during departmental meetings, and, ministrative Law Judge Frank. finally, he engaged in distribution of leaflets on behalf of The General Counsel's claim that Respondent's de- the Union on November 26. In any event, Respondent fense is a pretext poses a close question. Respondent's does not seriously argue an evidentiary failure of this able counsel adduced considerable evidence in support of prima facie element. Respondent's economic defense. That unrefuted evidence Respondent's knowledge of Thomas' protected activity includes impressive elements of proof. Additionally, is disputed. Emack and Thornton disclaimed they saw there are other significant factors which militate in favor Thomas leafleting on November 26. Thomas and of finding merit to Respondent's contentions: Mamber testified Thornton went through the gate during (a) Thus, though Thomas was an employee leader the leafleting. I credit them. When asked whether he saw during the March work stoppage, Respondent later Thomas at the gate on November 26, Thornton was granted his transfer request. This reduces the strength of equivocal. He responded, "I do not recall seeing him an i Respondent was motivated by antipa- [Thomas] at the gate." There was only one gate to Re- thy toward protected activities. spondent's plant. Given Respondent's concern over the .,„ .„ . - .... . sponent' plat. Gven espodents cocernoverthe (b) Historically, the first shift in the die maintenance union activities of its employees manifested by its earlier dam recarly was staffed by teie asntenly violations (250 NLRB 692), it is unlikely the leafleting department regularly was staffed by Courtois as the only activities of November 26 and the participants in it employee working there. This fact supports Respondentds would have gone unnoticed. Accordingly, I infer Re- d c la im t h at n o m o re t h d a uc n e pl w as n b e de d spondent had direct knowledge of Thomas' leafleting ac-during a period of reduced backlog. tivities on November 26. (c ) T h e evidence establishes the need for a layoff in Assuming, arguendo, Thornton is credited, there is die maintenance. Since June, Respondent engaged in a other evidence of Respondent's knowledge. Thus. other program of staff reduction. The backlog in die mainte- supervisors, such as Gangini, passed through the gate n a nc e w hic h existed at T h o m as' t r a n sf er virtually had during the leafleting. Gangini was Thomas' immediate been diminished. Thomas was only 1 of 33 employees supervisor. Gangini did not testify at the hearing. In laid off during the implementation of the overall pro- these circumstances, it is reasonable to infer, as I do, that gram to reduce the production and maintenance work Gangini's testimony would have been adverse to Re- f o r c e . Indeed, the General Counsel concedes the exist- spondent had he testified. Interstate Circuit. Inc., et aL v. ence of Respondent's premise of staff reduction. United States, 306 U.S. 208 (1939); Monahan Ford Corpo- (d) The decision that Thomas would be the employee ration of Flushing, 173 NLRB 204 (1968); Crow Cravel t o be laid off apparently was made in conformity with Co., 168 NLRB 1040, 1047 (1967). preexisting and customary standards. Thus, where com- As to knowledge, the parties have focused their argu- petency was not in question, seniority governed layoffs. ments on the November 26 activities. However, my con- Undeniably, Thomas was both the least senior and expe- clusions are predicated on the entire record. I cannot iso- rienced die maintenance employee. late Thomas' earlier activities. Accordingly, I further (e) No one was hired to replace Thomas. This fact conclude that Nichols' unlawful remark to Thomas in lends support to Respondent's claim that the reduced June is additional evidence that Respondent knew of workload in die maintenance necessitated a layoff. Thomas' union activities. Still further evidence of (f) When Mohammed was promoted, Thomas was of- Thomas' protected activities exists by virtue of Emack's fered reinstatement. This fact has some slight impact participation in a conversation with Thomas as spokes- upon the existence of Respondent's animus. man for the other employees who walked out in March (g) Respondent was consistent. No attempt has been and also from Thomas' vocal expressions concerning made to provide a variety (shifting) of reasons for its working conditions in Nichols' presence, during depart- action against Thomas. At his terminal interview, mental meetings. Thomas was advised by Emack that his layoff was for I conclude that the General Counsel has established lack of work. Also, Emack told Thomas he might be re- the requisite element of antiunion hostility. Two bases called if business improved. The documentary evidence are present for this conclusion. First, I have found Nich- (payroll change form) confirms Emack's testimony in MAGNESIUM CASTING COMPANY, INC. 425 quoted with approval by the Board in Best Products ols' statement that Thomas should keep a low profile a Company, Inc., 236 NLRB 1024, 1025 (1978). violation of the Act. Second, Administrative Law Judge Support for a finding of unlawful motivation "is aug- Frank's decision, approved by the Board in 250 NLRB mented [when] the explanation of the [employer's con- 692, is replete with evidence of animus. The Board will duct] offered by the Respondent [does] not stand up take official notice of its own prior decisions which in- under scrutiny." N.LR.B. v. Bird Mach. Co., 161 F.2d volve the same parties and similar issues. Moulton Manu- 589, 592 (1st Cir. 1947). facturing Company, 152 NLRB 196, 207 (1965). Thus, I The instant allegation requires me to determine, from take official notice the Board has approved Administra- the totality of evidence, whether the asserted reason for tive Law Judge Frank's findings. Moreover, the Board Thomas' layoff actually motivated it. Signal Delivery agreed with Administrative Law Judge Frank's conclu- Service, Inc., 226 NLRB 843 (1976). sion the unfair labor practices committed by Respondent Undeniably, there is ample record evidence Thomas warranted a broad cease-and-desist order. There is no had been engaged in a variety of protected activity. evidence in the instant record to show any alteration in Thus, he was a leader of the walkout in March and a Respondent's position regarding union activities of its spokesman for other employees, he was vocal regarding employees from that exhibited in the cases before Ad- working conditions during departmental meetings, and, ministrative Law Judge Frank. finally, he engaged in distribution of leaflets on behalf of The General Counsel's claim that Respondent's de- the Union on November 26. In any event, Respondent fense is a pretext poses a close question. Respondent's does not seriously argue an evidentiary failure of this able counsel adduced considerable evidence in support of prima facie element. Respondent's economic defense. That unrefuted evidence Respondent's knowledge of Thomas' protected activity includes impressive elements of proof. Additionally, is disputed. Emack and Thornton disclaimed they saw there are other significant factors which militate in favor Thomas leafleting on November 26. Thomas and of finding merit to Respondent's contentions: Mamber testified Thornton went through the gate during (a) Thus, though Thomas was an employee leader the leafleting. I credit them. When asked whether he saw during the March work stoppage, Respondent later Thomas at the gate on November 26, Thornton was granted his transfer request. This reduces the strength of equivocal. He responded, "I do not recall seeing him an i Respondent was motivated by antipa- [Thomas] at the gate." There was only one gate to Re- thy toward protected activities. spondent's plant. Given Respondent's concern over the .,„ .„ . - .... . sponent' plat. Gven espodents cocernoverthe (b) Historically, the first shift in the die maintenance union activities of its employees manifested by its earlier d recarly was staffed by teie asntenly violations (250 NLRB 692), it is unlikely the leafleting department regularly was staffed by Courtois as the only activities of November 26 and the participants in it employee working there. This fact supports Respondentds would have gone unnoticed. Accordingly, I infer Re- d c la im t h at n o m o re t h d a uc n e pl w as n b e de d spondent had direct knowledge of Thomas' leafleting ac-during a period of reduced backlog. tivities on November 26. (c ) T h e evidence establishes the need for a layoff in Assuming, arguendo, Thornton is credited, there is die maintenance. Since June, Respondent engaged in a other evidence of Respondent's knowledge. Thus. other program of staff reduction. The backlog in die mainte- supervisors, such as Gangini, passed through the gate n a nc e w hic h existed at T h o m as' t r a n sf er virtually had during the leafleting. Gangini was Thomas' immediate b ee n diminished. Thomas was only 1 of 33 employees supervisor. Gangini did not testify at the hearing. In laid off during the implementation of the overall pro- these circumstances, it is reasonable to infer, as I do, that gram to reduce the production and maintenance work Gangini's testimony would have been adverse to Re- f o r c e . Indeed, the General Counsel concedes the exist- spondent had he testified. Interstate Circuit. Inc., et aL v. ence of Respondent's premise of staff reduction. United States, 306 U.S. 208 (1939); Monahan Ford Corpo- (d) The decision that Thomas would be the employee ration of Flushing, 173 NLRB 204 (1968); Crow Cravel t o be laid off apparently was made in conformity with Co., 168 NLRB 1040, 1047 (1967). preexisting and customary standards. Thus, where com- As to knowledge, the parties have focused their argu- petency was not in question, seniority governed layoffs. ments on the November 26 activities. However, my con- Undeniably, Thomas was both the least senior and expe- clusions are predicated on the entire record. I cannot iso- rienced die maintenance employee. late Thomas' earlier activities. Accordingly, I further (e) No one was hired to replace Thomas. This fact conclude that Nichols' unlawful remark to Thomas in lends support to Respondent's claim that the reduced June is additional evidence that Respondent knew of workload in die maintenance necessitated a layoff. Thomas' union activities. Still further evidence of (f) When Mohammed was promoted, Thomas was of- Thomas' protected activities exists by virtue of Emack's fered reinstatement. This fact has some slight impact participation in a conversation with Thomas as spokes- upon the existence of Respondent's animus. man for the other employees who walked out in March (g) Respondent was consistent. No attempt has been and also from Thomas' vocal expressions concerning made to provide a variety (shifting) of reasons for its working conditions in Nichols' presence, during depart- action against Thomas. At his terminal interview, mental meetings. Thomas was advised by Emack that his layoff was for I conclude that the General Counsel has established lack of work. Also, Emack told Thomas he might be re- the requisite element of antiunion hostility. Two bases called if business improved. The documentary evidence are present for this conclusion. First, I have found Nich- (payroll change form) confirms Emack's testimony in MAGNESIUM CASTING COMPANY, INC. 425 quoted with approval by the Board in Best Products ols' statement that Thomas should keep a low profile a Company, Inc., 236 NLRB 1024, 1025 (1978). violation of the Act. Second, Administrative Law Judge Support for a finding of unlawful motivation "is aug- Frank's decision, approved by the Board in 250 NLRB mented [when] the explanation of the [employer's con- 692, is replete with evidence of animus. The Board will duct] offered by the Respondent [does] not stand up take official notice of its own prior decisions which in- under scrutiny." N.LR.B. v. Bird Mach. Co., 161 F.2d volve the same parties and similar issues. Moulton Manu- 589, 592 (1st Cir. 1947). facturing Company, 152 NLRB 196, 207 (1965). Thus, I The instant allegation requires me to determine, from take official notice the Board has approved Administra- the totality of evidence, whether the asserted reason for tive Law Judge Frank's findings. Moreover, the Board Thomas' layoff actually motivated it. Signal Delivery agreed with Administrative Law Judge Frank's conclu- Service, Inc., 226 NLRB 843 (1976). sion the unfair labor practices committed by Respondent Undeniably, there is ample record evidence Thomas warranted a broad cease-and-desist order. There is no had been engaged in a variety of protected activity. evidence in the instant record to show any alteration in Thus, he was a leader of the walkout in March and a Respondent's position regarding union activities of its spokesman for other employees, he was vocal regarding employees from that exhibited in the cases before Ad- working conditions during departmental meetings, and, ministrative Law Judge Frank. finally, he engaged in distribution of leaflets on behalf of The General Counsel's claim that Respondent's de- the Union on November 26. In any event, Respondent fense is a pretext poses a close question. Respondent's does not seriously argue an evidentiary failure of this able counsel adduced considerable evidence in support of prima facie element. Respondent's economic defense. That unrefuted evidence Respondent's knowledge of Thomas' protected activity includes impressive elements of proof. Additionally, is disputed. Emack and Thornton disclaimed they saw there are other significant factors which militate in favor Thomas leafleting on November 26. Thomas and of finding merit to Respondent's contentions: Mamber testified Thornton went through the gate during (a) Thus, though Thomas was an employee leader the leafleting. I credit them. When asked whether he saw during the March work stoppage, Respondent later Thomas at the gate on November 26, Thornton was granted his transfer request. This reduces the strength of equivocal. He responded, "I do not recall seeing him an i Respondent was motivated by antipa- [Thomas] at the gate." There was only one gate to Re- thy toward protected activities. spondent's plant. Given Respondent's concern over the .,„ .„ . - .... . sponent' plat. Gven espodents cocernoverthe (b) Historically, the first shift in the die maintenance union activities of its employees manifested by its earlier d recarly was staffed by teie asntenly violations (250 NLRB 692), it is unlikely the leafleting department regularly was staffed by Courtois as the only activities of November 26 and the participants in it employee working there. This fact supports Respondentds would have gone unnoticed. Accordingly, I infer Re- d c la im t h at n o m o re t h d a uc n e pl w as n b e de d spondent had direct knowledge of Thomas' leafleting ac-during a period of reduced backlog. tivities on November 26. (c ) T h e evidence establishes the need for a layoff in Assuming, arguendo, Thornton is credited, there is die maintenance. Since June, Respondent engaged in a other evidence of Respondent's knowledge. Thus. other program of staff reduction. The backlog in die mainte- supervisors, such as Gangini, passed through the gate n a nc e w hic h existed at T h o m as' t r a n sf er virtually had during the leafleting. Gangini was Thomas' immediate b ee n diminished. Thomas was only 1 of 33 employees supervisor. Gangini did not testify at the hearing. In laid off during the implementation of the overall pro- these circumstances, it is reasonable to infer, as I do, that gram to reduce the production and maintenance work Gangini's testimony would have been adverse to Re- f o r c e . Indeed, the General Counsel concedes the exist- spondent had he testified. Interstate Circuit. Inc., et aL v. ence of Respondent's premise of staff reduction. United States, 306 U.S. 208 (1939); Monahan Ford Corpo- (d) The decision that Thomas would be the employee ration of Flushing, 173 NLRB 204 (1968); Crow Cravel t o be laid off apparently was made in conformity with Co., 168 NLRB 1040, 1047 (1967). preexisting and customary standards. Thus, where com- As to knowledge, the parties have focused their argu- petency was not in question, seniority governed layoffs. ments on the November 26 activities. However, my con- Undeniably, Thomas was both the least senior and expe- clusions are predicated on the entire record. I cannot iso- rienced die maintenance employee. late Thomas' earlier activities. Accordingly, I further (e) No one was hired to replace Thomas. This fact conclude that Nichols' unlawful remark to Thomas in lends support to Respondent's claim that the reduced June is additional evidence that Respondent knew of workload in die maintenance necessitated a layoff. Thomas' union activities. Still further evidence of (f) When Mohammed was promoted, Thomas was of- Thomas' protected activities exists by virtue of Emack's fered reinstatement. This fact has some slight impact participation in a conversation with Thomas as spokes- upon the existence of Respondent's animus. man for the other employees who walked out in March (g) Respondent was consistent. No attempt has been and also from Thomas' vocal expressions concerning made to provide a variety (shifting) of reasons for its working conditions in Nichols' presence, during depart- action against Thomas. At his terminal interview, mental meetings. Thomas was advised by Emack that his layoff was for I conclude that the General Counsel has established lack of work. Also, Emack told Thomas he might be re- the requisite element of antiunion hostility. Two bases called if business improved. The documentary evidence are present for this conclusion. First, I have found Nich- (payroll change form) confirms Emack's testimony in 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this regard. That document contains notations that the been no satisfactory explanation for a 6-week delay in ef- layoff was attributed to lack of work and confirms fectuating Thomas' layoff. Emack's remark concerning potential for recall. (4) Respondent displayed an adverse reaction to Viewed in isolation, the sum of Respondent's econom- Thomas' protected activities. Nichols' June "low-profile" ic evidence is impressive. It shows the existence of a remark, found unlawful, reflects Respondent's predisposi- need to reduce die maintenance overhead. Further, Re- tion to interfere with the exercise of his Section 7 rights. spondent's evidence shows such a need was dictated by a Thomas' first overt exercise of those rights after Nichols general decline in Respondent's production requirements. made his comment was on November 26. Respondent's Arguably, then, the layoff in the die maintenance depart- reaction was swift. In all the circumstances, I find Nich- ment simply was a continuation of the layoff pattern in ols' remark interrelated with the layoff. progress since May. In these circumstances, the selection (5) Respondent has a propensity to violate the Act. of Thomas for layoff could be a natural consequence. Bor' iion in B However, the situation does not rest on the foregoing T h e B o ar d s d ec o n 2 50 N L R B 6 92 g e- discussion. The validity of the economic defense is not to spondent and the instant Charging Party, may be consid- be determined by such superficial analysis. Thus, Re- ered herein. Indeed, I consider it unrealistic to ignore spondent's evidence must be assessed together with that Respondent's past misconduct. I have accorded it some, presented by the General Counsel. If such examination but not dispositive, weight. Metlox Manufacturing Com- reflects the existence of valid business reasons for the pany, 225 NLRB 1317, 1325 (1976); Tama Meat Packing layoff but nonetheless reasonably demonstrates that a Corp., 230 NLRB 116 (1977). substantial and motivating ground for Thomas' layoff (6) Thomas was the only employee currently at work was his protected activity, the General Counsel should whose union activity was notorious. Mamber was assist- prevail. Dilene Answering Service, Inc., 222 NLRB 462 ed in the November 26 distribution of literature by (1976); KBM Electronics, Inc., t/a Carsounds, 218 NLRB Thomas and former employee Lamkin. At that time, Ad- 1352, 1358 (1975); N.LR.B. v. Whitin Machine Works, ministrative Law Judge Frank had declared Respondent 204 F.2d 883, 885 (Ist Cir. 1953). violated the Act, in part, by having earlier discharged Evaluation of the record, in its totality, persuades me Lamkin.8 I consider Thomas' open association with the the General Counsel should prevail. In reaching this con- Union and Lamkin on November 26 somewhat signifi- clusion, I am particularly influenced by the following cant in establishing Respondent's true motivation for considerations: Thomas' layoff. It is circumstantial evidence which pro- (1) Thomas' layoff was precipitous. It followed vides some insight to the impetus for Respondent's pre- Thomas' November 26 leafleting by only I day. Coinci- cipitous conduct. dence in protected activity and adverse personnel actions In sum, I conclude the record sufficiently demon- against employees is a strong factor supporting an infer- strates the asserted defense is pretextual. It follows the ence of unlawful motivation. McGraw-Edison Company v. reason ascribed by Respondent for Thomas' layoff is un- N.LR.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Harry lawful. Keller Manufacturing Company, Inc., 237 NLRB F. Berggren & Sons, Inc., 406 F.2d 239, 245 (8th Cir. 712, 717 (1978) (as to Alice Meyers). Accordingly, I find 1969), cert. denied 396 U.S. 823. the record contains a preponderance of evidence to show (2) The reason propounded by Thornton and Emack that Thomas' November 27 layoff was in violation of for selecting November 27 as the layoff date is uncon- Section 8(a)(3) and (1) of the Act. vincing. Each of these managerial officials impressed me Further, I conclude the consequence of Thomas' layoff as responsible and alert officials. Thus, characteristically, reasonably has the proscribed effect of discouraging em- Thornton signified he regularly monitored the produc- ployee union activity. The layoff, having occurred only tion and maintenance workload. He described the situa- day after Thomas distributed union literature, surely tion in the die maintenance department as "critical" oner employees the potential risks of freely November 26. It is illogical that Thornton permitted the o e i r expressing union sympathies. This is precisely the inhibit- die maintenance department to deteriorate to the deplor- ing effect the Act is designed to protect against able condition he asserted. I find this circumstance con- e the A is esed to oe aa trary to the apparent business acumen otherwise demon- pon the basis o the above findin offact and up strated by Thornton. It suggests that the asserted discov- the entire record n the case, I make the following ery of the severe conditions in the die maintenance de- CONCLUSIONS OF LAW partment on November 26 (the very day of Thomas' lea- fleting) is a fabrication. Moreover, the failure to grant 1. Respondent is an employer engaged in commerce Thomas' request to complete his workweek is unex- within the meaning of Section 2(2), (6), and (7) of the plained. Act. (3) Respondent has not satisfactorily explained why 2. The Union is a labor organization within the mean- the date of November 27 had been selected for Thomas' ing of Section 2(5) of the Act. layoff. As already noted, I have found it implausible that 3. Respondent interfered with, restrained, and coerced the die maintenance workload was not more accurately its employees in violation of Section 8(a)(l) of the Act observed before November 26. Respondent's brief asserts when Nichols, its personnel manager, told Thomas, its that a layoff in that department was "inevitable" since October 12. On this date, several die-cast machine opera- ' In 250 NLRB 692, the Board left Administrative Law Judge Frank's tors had been laid off. In this context, I find there has determination undisputed. -mc' remar ------ in -oeta for --- l 4 epndn ipae nades ecint 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this regard. That document contains notations that the been no satisfactory explanation for a 6-week delay in ef- layoff was attributed to lack of work and confirms fectuating Thomas' layoff. Emack's remark concerning potential for recall. (4) Respondent displayed an adverse reaction to Viewed in isolation, the sum of Respondent's econom- Thomas' protected activities. Nichols' June "low-profile" ic evidence is impressive. It shows the existence of a remark, found unlawful, reflects Respondent's predisposi- need to reduce die maintenance overhead. Further, Re- tion to interfere with the exercise of his Section 7 rights. spondent's evidence shows such a need was dictated by a Thomas' first overt exercise of those rights after Nichols general decline in Respondent's production requirements. made his comment was on November 26. Respondent's Arguably, then, the layoff in the die maintenance depart- reaction was swift. In all the circumstances, I find Nich- ment simply was a continuation of the layoff pattern in ols' remark interrelated with the layoff. progress since May. In these circumstances, the selection Respondent has a propensity to violate the Act. of Thomas for layoff could be a natural consequence. However, the situation does not rest on the foregoing T h e B o a r d 's d e c isio n in 25 0 N L R B 6 9 2, involving Re- discussion. The validity of the economic defense is not to spondent a n d t h e ins ta n t Ch a rgi n g Party, may be consid- be determined by such superficial analysis. Thus, Re- e r e d h e r e in. I n d e e d , I c o n s id e r it unrealistic to ignore spondent's evidence must be assessed together with that Respondent's past misconduct. I have accorded it some, presented by the General Counsel. If such examination b u t no t dispositive, weight. Metlox Manufacturing Com- reflects the existence of valid business reasons for the pany' 2 2 5 N L R B 1 3 1 7, 13 2 5 (19 7 6); T a m a M e a t Packing layoff but nonetheless reasonably demonstrates that a Corp., 230 NLRB 116 (1977). substantial and motivating ground for Thomas' layoff (6 ) Thomas was the only employee currently at work was his protected activity, the General Counsel should whose union activity was notorious. Mamber was assist- prevail. Dilene Answering Service, Inc., 222 NLRB 462 ed in the November 26 distribution of literature by (1976); KBM Electronics, Inc., t/a Carsounds, 218 NLRB Thomas and former employee Lamkin. At that time, Ad- 1352, 1358 (1975); N.LR.B. v. Whitin Machine Works, ministrative Law Judge Frank had declared Respondent 204 F.2d 883, 885 (1st Cir. 1953). violated the Act, in part, by having earlier discharged Evaluation of the record, in its totality, persuades me Lamkin. 9 I consider Thomas' open association with the the General Counsel should prevail. In reaching this con- Union and Lamkin on November 26 somewhat signifi- clusion, I am particularly influenced by the following cant in establishing Respondent's true motivation for considerations: Thomas' layoff. It is circumstantial evidence which pro- (1) Thomas' layoff was precipitous. It followed vides some insight to the impetus for Respondent's pre- Thomas' November 26 leafleting by only 1 day. Coinci- cipitous conduct. dence in protected activity and adverse personnel actions In sum, I conclude the record sufficiently demon- against employees is a strong factor supporting an infer- strates the asserted defense is pretextual. It follows the ence of unlawful motivation. McGraw-Edison Company v. reason ascribed by Respondent for Thomas' layoff is un- N.LR.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Harry lawful. Keller Manufacturing Company, Inc., 237 NLRB F. Berggren & Sons, Inc., 406 F.2d 239, 245 (8th Cir. 712, 717 (1978) (as to Alice Meyers). Accordingly, I find 1969), cert. denied 396 U.S. 823. the record contains a preponderance of evidence to show (2) The reason propounded by Thornton and Emack that Thomas' November 27 layoff was in violation of for selecting November 27 as the layoff date is uncon- Section 8(a)(3) and (1) of the Act. vincing. Each of these managerial officials impressed me Further, I conclude the consequence of Thomas' layoff as responsible and alert officials. Thus, characteristically, reasonably has the proscribed effect of discouraging em- Thornton signified he regularly monitored the produc- ployee union activity. The layoff, having occurred only tion and maintenance workload. He described the situa- I d er Thomas distributed union literature, surely tion in t h e die maintenance department as "critical" on s t oer employees the potential risks of freely November 26. It is illogical that Thomnton permitted the* j Tf *,i_ r Noveber26. t i ilogicl tat Tornon ermitedthe expressing union sympathies. This is precisely the inhibit- die maintenance department to deteriorate to the deplor- eing e nis signed to precist. able condition he asserted. I find this circumstance con- "8 effect the Act is designed to protect against. trary to the apparent business acumen otherwise demon- v p o n t he b as en i .e t he a bo v eImethe o ff f ac tw a nd g P strated by Thornton. It suggests that the asserted discov- t h e e n t lre r e c o r d l n t t e c as e, I m ak e th e bowing: ery of the severe conditions in the die maintenance de- NCLUS rF LAW partment on November 26 (the very day of Thomas' lea- fleting) is a fabrication. Moreover, the failure to grant 1. Respondent is an employer engaged in commerce Thomas' request to complete his workweek is unex- within the meaning of Section 2(2), (6), and (7) of the plained. Act. (3) Respondent has not satisfactorily explained why 2. The Union is a labor organization within the mean- the date of November 27 had been selected for Thomas' ing of Section 2(5) of the Act. layoff. As already noted, I have found it implausible that 3. Respondent interfered with, restrained, and coerced the die maintenance workload was not more accurately its employees in violation of Section 8(a)(l) of the Act observed before November 26. Respondent's brief asserts when Nichols, its personnel manager, told Thomas, its that a layoff in that department was "inevitable" since October 12. On this date, several die-cast machine opera- . In 250 NLRB 692, the Board left Administrative Law Judge Frank's tors had been laid off. In this context, I find there has determination undisputed. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this regard. That document contains notations that the been no satisfactory explanation for a 6-week delay in ef- layoff was attributed to lack of work and confirms fectuating Thomas' layoff. Emack's remark concerning potential for recall. (4) Respondent displayed an adverse reaction to Viewed in isolation, the sum of Respondent's econom- Thomas' protected activities. Nichols' June "low-profile" ic evidence is impressive. It shows the existence of a remark, found unlawful, reflects Respondent's predisposi- need to reduce die maintenance overhead. Further, Re- tion to interfere with the exercise of his Section 7 rights. spondent's evidence shows such a need was dictated by a Thomas' first overt exercise of those rights after Nichols general decline in Respondent's production requirements. made his comment was on November 26. Respondent's Arguably, then, the layoff in the die maintenance depart- reaction was swift. In all the circumstances, I find Nich- ment simply was a continuation of the layoff pattern in ols' remark interrelated with the layoff. progress since May. In these circumstances, the selection Respondent has a propensity to violate the Act. of Thomas for layoff could be a natural consequence. However, the situation does not rest on the foregoing T h e B o a r d 's d e c isio n in 25 0 N L R B 6 9 2, involving Re- discussion. The validity of the economic defense is not to spondent a n d t h e ins ta n t Ch a rgi n g Party, may be consid- be determined by such superficial analysis. Thus, Re- e r e d h e r e in. I n d e e d , I c o n s id e r it unrealistic to ignore spondent's evidence must be assessed together with that Respondent's past misconduct. I have accorded it some, presented by the General Counsel. If such examination b u t no t dispositive, weight. Metlox Manufacturing Com- reflects the existence of valid business reasons for the pany' 2 2 5 N L R B 1 3 1 7, 13 2 5 (19 7 6); T a m a M e a t Packing layoff but nonetheless reasonably demonstrates that a Corp., 230 NLRB 116 (1977). substantial and motivating ground for Thomas' layoff (6 ) Thomas was the only employee currently at work was his protected activity, the General Counsel should whose union activity was notorious. Mamber was assist- prevail. Dilene Answering Service, Inc., 222 NLRB 462 ed in the November 26 distribution of literature by (1976); KBM Electronics, Inc., t/a Carsounds, 218 NLRB Thomas and former employee Lamkin. At that time, Ad- 1352, 1358 (1975); N.LR.B. v. Whitin Machine Works, ministrative Law Judge Frank had declared Respondent 204 F.2d 883, 885 (1st Cir. 1953). violated the Act, in part, by having earlier discharged Evaluation of the record, in its totality, persuades me Lamkin. 9 I consider Thomas' open association with the the General Counsel should prevail. In reaching this con- Union and Lamkin on November 26 somewhat signifi- clusion, I am particularly influenced by the following cant in establishing Respondent's true motivation for considerations: Thomas' layoff. It is circumstantial evidence which pro- (1) Thomas' layoff was precipitous. It followed vides some insight to the impetus for Respondent's pre- Thomas' November 26 leafleting by only 1 day. Coinci- cipitous conduct. dence in protected activity and adverse personnel actions In sum, I conclude the record sufficiently demon- against employees is a strong factor supporting an infer- strates the asserted defense is pretextual. It follows the ence of unlawful motivation. McGraw-Edison Company v. reason ascribed by Respondent for Thomas' layoff is un- N.LR.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Harry lawful. Keller Manufacturing Company, Inc., 237 NLRB F. Berggren & Sons, Inc., 406 F.2d 239, 245 (8th Cir. 712, 717 (1978) (as to Alice Meyers). Accordingly, I find 1969), cert. denied 396 U.S. 823. the record contains a preponderance of evidence to show (2) The reason propounded by Thornton and Emack that Thomas' November 27 layoff was in violation of for selecting November 27 as the layoff date is uncon- Section 8(a)(3) and (1) of the Act. vincing. Each of these managerial officials impressed me Further, I conclude the consequence of Thomas' layoff as responsible and alert officials. Thus, characteristically, reasonably has the proscribed effect of discouraging em- Thornton signified he regularly monitored the produc- ployee union activity. The layoff, having occurred only tion and maintenance workload. He described the situa- I d er Thomas distributed union literature, surely tion in t h e die maintenance department as "critical" on s to other employees the potential risks of freely November 26. It is illogical that Thomnton permitted the* j Tf *,i_ r Noveber26. t i ilogicl tat Tornon ermitedthe expressing union sympathies. This is precisely the inhibit- die maintenance department to deteriorate to the deplor- eing e nis signed to precist. able condition he asserted. I find this circumstance con- "8 effect the Act is designed to protect against. trary to the apparent business acumen otherwise demon- v p o n t he b as en i .e t he a bo v eImethe o ff f ac tw a nd g P strated by Thornton. It suggests that the asserted discov- t h e e n t lre r e c o r d l n t t e c as e, I m ak e th e bowing: ery of the severe conditions in the die maintenance de- NCLUS rF LAW partment on November 26 (the very day of Thomas' lea- fleting) is a fabrication. Moreover, the failure to grant 1. Respondent is an employer engaged in commerce Thomas' request to complete his workweek is unex- within the meaning of Section 2(2), (6), and (7) of the plained. Act. (3) Respondent has not satisfactorily explained why 2. The Union is a labor organization within the mean- the date of November 27 had been selected for Thomas' ing of Section 2(5) of the Act. layoff. As already noted, I have found it implausible that 3. Respondent interfered with, restrained, and coerced the die maintenance workload was not more accurately its employees in violation of Section 8(a)(l) of the Act observed before November 26. Respondent's brief asserts when Nichols, its personnel manager, told Thomas, its that a layoff in that department was "inevitable" since October 12. On this date, several die-cast machine opera- . In 250 NLRB 692, the Board left Administrative Law Judge Frank's tors had been laid off. In this context, I find there has determination undisputed. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this regard. That document contains notations that the been no satisfactory explanation for a 6-week delay in ef- layoff was attributed to lack of work and confirms fectuating Thomas' layoff. Emack's remark concerning potential for recall. (4) Respondent displayed an adverse reaction to Viewed in isolation, the sum of Respondent's econom- Thomas' protected activities. Nichols' June "low-profile" ic evidence is impressive. It shows the existence of a remark, found unlawful, reflects Respondent's predisposi- need to reduce die maintenance overhead. Further, Re- tion to interfere with the exercise of his Section 7 rights. spondent's evidence shows such a need was dictated by a Thomas' first overt exercise of those rights after Nichols general decline in Respondent's production requirements. made his comment was on November 26. Respondent's Arguably, then, the layoff in the die maintenance depart- reaction was swift. In all the circumstances, I find Nich- ment simply was a continuation of the layoff pattern in ols' remark interrelated with the layoff. progress since May. In these circumstances, the selection Respondent has a propensity to violate the Act. of Thomas for layoff could be a natural consequence. However, the situation does not rest on the foregoing T h e B o a r d 's d e c isio n in 25 0 N L R B 6 9 2, involving Re- discussion. The validity of the economic defense is not to spondent a n d t h e ins ta n t Ch a rgi n g Party, may be consid- be determined by such superficial analysis. Thus, Re- e r e d h e r e in. I n d e e d , I c o n s id e r it unrealistic to ignore spondent's evidence must be assessed together with that Respondent's past misconduct. I have accorded it some, presented by the General Counsel. If such examination b u t no t dispositive, weight. Metlox Manufacturing Com- reflects the existence of valid business reasons for the pany' 2 2 5 N L R B 1 3 1 7, 13 2 5 (19 7 6); T a m a M e a t Packing layoff but nonetheless reasonably demonstrates that a Corp., 230 NLRB 116 (1977). substantial and motivating ground for Thomas' layoff (6 ) Thomas was the only employee currently at work was his protected activity, the General Counsel should whose union activity was notorious. Mamber was assist- prevail. Dilene Answering Service, Inc., 222 NLRB 462 ed in the November 26 distribution of literature by (1976); KBM Electronics, Inc., t/a Carsounds, 218 NLRB Thomas and former employee Lamkin. At that time, Ad- 1352, 1358 (1975); N.LR.B. v. Whitin Machine Works, ministrative Law Judge Frank had declared Respondent 204 F.2d 883, 885 (1st Cir. 1953). violated the Act, in part, by having earlier discharged Evaluation of the record, in its totality, persuades me Lamkin. 9 I consider Thomas' open association with the the General Counsel should prevail. In reaching this con- Union and Lamkin on November 26 somewhat signifi- clusion, I am particularly influenced by the following cant in establishing Respondent's true motivation for considerations: Thomas' layoff. It is circumstantial evidence which pro- (1) Thomas' layoff was precipitous. It followed vides some insight to the impetus for Respondent's pre- Thomas' November 26 leafleting by only 1 day. Coinci- cipitous conduct. dence in protected activity and adverse personnel actions In sum, I conclude the record sufficiently demon- against employees is a strong factor supporting an infer- strates the asserted defense is pretextual. It follows the ence of unlawful motivation. McGraw-Edison Company v. reason ascribed by Respondent for Thomas' layoff is un- N.LR.B., 419 F.2d 67 (8th Cir. 1969); N.L.R.B. v. Harry lawful. Keller Manufacturing Company, Inc., 237 NLRB F. Berggren & Sons, Inc., 406 F.2d 239, 245 (8th Cir. 712, 717 (1978) (as to Alice Meyers). Accordingly, I find 1969), cert. denied 396 U.S. 823. the record contains a preponderance of evidence to show (2) The reason propounded by Thornton and Emack that Thomas' November 27 layoff was in violation of for selecting November 27 as the layoff date is uncon- Section 8(a)(3) and (1) of the Act. vincing. Each of these managerial officials impressed me Further, I conclude the consequence of Thomas' layoff as responsible and alert officials. Thus, characteristically, reasonably has the proscribed effect of discouraging em- Thornton signified he regularly monitored the produc- ployee union activity. The layoff, having occurred only tion and maintenance workload. He described the situa- I d er Thomas distributed union literature, surely tion in t h e die maintenance department as "critical" on s to other employees the potential risks of freely November 26. It is illogical that Thomnton permitted the* j Tf *ii r Noveber26. t i ilogicl tat Tornon ermitedthe expressing union sympathies. This is precisely the inhibit- die maintenance department to deteriorate to the deplor- eing e nis signed to precist. able condition he asserted. I find this circumstance con- "8 effect the Act is designed to protect against. trary to the apparent business acumen otherwise demon- v p o n t he b as en i .e t he a bo v eImethe o ff f ac tw a nd g P strated by Thornton. It suggests that the asserted discov- t h e e n t lre r e c o r d l n t t e c as e, I m ak e th e bowing: ery of the severe conditions in the die maintenance de- NCLUS rF LAW partment on November 26 (the very day of Thomas' lea- fleting) is a fabrication. Moreover, the failure to grant 1. Respondent is an employer engaged in commerce Thomas' request to complete his workweek is unex- within the meaning of Section 2(2), (6), and (7) of the plained. Act. (3) Respondent has not satisfactorily explained why 2. The Union is a labor organization within the mean- the date of November 27 had been selected for Thomas' ing of Section 2(5) of the Act. layoff. As already noted, I have found it implausible that 3. Respondent interfered with, restrained, and coerced the die maintenance workload was not more accurately its employees in violation of Section 8(a)(l) of the Act observed before November 26. Respondent's brief asserts when Nichols, its personnel manager, told Thomas, its that a layoff in that department was "inevitable" since October 12. On this date, several die-cast machine opera- . In 250 NLRB 692, the Board left Administrative Law Judge Frank's tors had been laid off. In this context, I find there has determination undisputed. MAGNESIUM CASTING COMPANY, INC. 427 employee, to keep a low profile regarding his union ac- tious character of the discriminatory conduct found un- tivities in June 1979. lawful in the instant matter punctuates the need to elimi- 4. By laying off Lawrence Thomas on November 27, nate future recurrences. Accordingly, I conclude it is 1979, Respondent discriminated against its employees in necessary that the Order herein be coextensive with the violation of Section 8(a)3) and (1) of the Act. degree of past misconduct and the threat of prospective 5. The aforesaid unfair labor practices affect commerce reiteration. within the meaning of Section 2(6) and (7) of the Act. The demonstrated proclivity to violate the Act war- rants a broad proscriptive order. Thus, the Order shall THE REMEDY require Respondent to refrain from, in any other manner, Having found that Respondent violated Section 8(a)(3) interfering with, restraining, and coercing its employees and (1) of the Act, I shall recommend it cease and desist 7theexe o f t h e n g h t s guarateed them by Secton from engaging in such conduct in the future and affirma- 7 o c. tively take such action as will dissipate the effects of its Upon the above findings of fact, conclusions of law, unfair labor practices. the entire record in this case, and pursuant to Section Because Thomas' November 27 layoff has been found 10(c) of the Act, I hereby issue the following recom- unlawful, the Order shall require Respondent to offer him full and immediate reinstatement to his former or ORDER 10 substantially equivalent job, without prejudice to his se- niority or other rights and privileges; and to make him The Respondent, Magnesium Casting Company, Inc., whole for any loss of earnings he may have suffered as a Hyde Park, Massachusetts, its officers, agents, successors, result of the discrimination by payment of a sum equal to and assigns, shall: that which he would have earned, absent the discrimina- 1. Cease and desist from: tion, to the date of Respondent's offer of reinstatement. (a) Discriminating against its employees for engaging Loss of earnings shall be computed as prescribed in F. in union or other activity protected by the Act. W Woolworth Company, 90 NLRB 289 (1950), plus inter- (b) Telling its employees to keep a low profile regard- est as set forth in Isis Plumbing & Heating Co., 138 ing their union activities. NLRB 716 (1962), and Florida Steel Corporation, 231 (c) In any other manner interfering with, restraining, NLRB 651 (1977). or coercing employees in the exercise of the rights guar- As previously noted, the Board (250 NLRB 692) held anteed in Section 7 of the Act, except to the extent that Respondent engaged in such extensive and egregious such rights might be affected by a lawful union-security unfair labor practices as warranted a broad cease-and- agreement in accord with Section 8(a)(3) of the Act. desist order. The events of the earlier cases occurred 2. Take the following affirmative action which it is more than 1 year before those litigated herein. As earlier found will effectuate the policies of the Act: noted, no evidence was adduced to show Respondent's (a) Offer Lawrence Thomas immediate and full rein- labor relations posture had changed before Thomas' statement to his former job or, if that position no longer layoff. Thornton, Emack, and Nichols were all Respond- exists, to a substantially equivalent position of employ- ent's supervisors during the earlier ligitated matters. ment, without prejudice to his seniority or other rights Each was involved, directly or indirectly, in the activi- and privileges," and make him whole in the manner de- ties which the Board has held unlawful. scribed above in the section entitled "The Remedy" for Herein, I have found that Respondent has once again any loss of pay or other benefits suffered by reason of his committed an independent 8(a)(1) violation. Also, it has discriminatory layoff on November 27, 1979. been found Thomas' layoff is another example of Re- (b) Preserve and, upon request, make available to the spondent's continued discriminatory treatment of its em- Board or its agents, for examination and copying, all ployees. payroll records, social security payment records, time- The events herein cannot be judged in isolation. I cards, personnel records and reports, and all other re- view Thomas' leafleting activity as an extension of the organizational efforts of 1978 as fully described in Ad- o In the event no exceptions are filed as provided by Sec. 102.46 of ministrative Law Judge Frank's decision. That decision the Rules and Regulations of the National Labor Relations Board, the was the subject of the leaflet distributed by Thomas. findings, conclusions, and recommended Order herein shall, as provided Herein, there simply is no basis to find Respondent has in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto recanted from its previous strenuous and illegal opposi- shall be deemed waived for all purposes. tion to its employees' union activity. Indeed, the swift " If it is determined the reinstatement offer made to Thomas upon Mo- layoff imposed on Thomas reflects the continuing vitality hammed's promotion in April 1980 was bona fide, no additional offer of of Respondent's aversion to free exercise of Section 7 reinstatement need be made and the backpay hereunder shall be comput- ed in accordance with the Board's procedures in such cases. Similarly, if rights. As shown hereinabove, Respondent's warning to the reinstatement offer was bona fide the next-to-last paragraph of the Thomas and his subsequent layoff are further evidence of notice attached hereto as an Appendix should be deleted and the follow- its complete disregard for employees' statutory rights. ing paragraph substituted: This is especially true when coupled with the Board's "WE HAVE OFFERED LAWRENCE THOMAS reinstatement to his determination in 250 NLRB 692. 9 Moreover, the repeti- forme or substantially equivalent job with us, without loss of senior- determination epe-in 250 NLRB 692.9e, thity or other rights, privileges and benefits; and we will make him whole, with interest, for all loss of pay and other benefits he suffered *See Brooks Cameras Inc., 250 NLRB 820 (1980). as a result of his discriminatory layoff on November 27, 1979." MAGNESIUM CASTING COMPANY, INC. 427 employee, to keep a low profile regarding his union ac- tious character of the discriminatory conduct found un- tivities in June 1979. lawful in the instant matter punctuates the need to elimi- 4. By laying off Lawrence Thomas on November 27, nate future recurrences. Accordingly, I conclude it is 1979, Respondent discriminated against its employees in necessary that the Order herein be coextensive with the violation of Section 8(a)(3) and (1) of the Act. degree of past misconduct and the threat of prospective 5. The aforesaid unfair labor practices affect commerce reiteration. within the meaning of Section 2(6) and (7) of the Act. The demonstrated proclivity to violate the Act war- rants a broad proscriptive order. Thus, the Order shall THE REMEDY require Respondent to refrain from, in any other manner, Having found that Respondent violated Section 8(a)(3) interfering w i t h , restraining, an d coercing it s employees and (1) of the Act, I shall recommend it cease and desist 7inth eeris o f t h e ri g h t s guarateed them by Section from engaging in such conduct in the future and affirma- , 7 of th At tively take such action as will dissipate the effects of its Upon t h e ab o v e findings o f f ac t, conclusions of law, unfair labor practices. t h e entire record in this case, and pursuant to Section Because Thomas' November 27 layoff has been found 10(c) of t h e A ct, I hereby is s ue th e follo w ing recom- unlawful, the Order shall require Respondent to offer him full and immediate reinstatement to his former orORDER 10 substantially equivalent job, without prejudice to his se- niority or other rights and privileges; and to make him The Respondent, Magnesium Casting Company, Inc., whole for any loss of earnings he may have suffered as a Hyde Park, Massachusetts, its officers, agents, successors, result of the discrimination by payment of a sum equal to and assigns, shall: that which he would have earned, absent the discrimina- 1. Cease and desist from: tion, to the date of Respondent's offer of reinstatement. (a) Discriminating against its employees for engaging Loss of earnings shall be computed as prescribed in F. in union or other activity protected by the Act. W. Woolworth Company, 90 NLRB 289 (1950), plus inter- (b) Telling its employees to keep a low profile regard- est as set forth in Isis Plumbing & Heating Co., 138 ing their union activities. NLRB 716 (1962), and Florida Steel Corporation, 231 (c) In any other manner interfering with, restraining, NLRB 651 (1977). or coercing employees in the exercise of the rights guar- As previously noted, the Board (250 NLRB 692) held anteed in Section 7 of the Act, except to the extent that Respondent engaged in such extensive and egregious such rights might be affected by a lawful union-security unfair labor practices as warranted a broad cease-and- agreement in accord with Section 8(a)(3) of the Act. desist order. The events of the earlier cases occurred 2. Take the following affirmative action which it is more than 1 year before those litigated herein. As earlier found will effectuate the policies of the Act: noted, no evidence was adduced to show Respondent's (a) Offer Lawrence Thomas immediate and full rein- labor relations posture had changed before Thomas' statement to his former job or, if that position no longer layoff. Thornton, Emack, and Nichols were all Respond- exists, to a substantially equivalent position of employ- ent's supervisors during the earlier ligitated matters. ment, without prejudice to his seniority or other rights Each was involved, directly or indirectly, in the activi- and privileges," and make him whole in the manner de- ties which the Board has held unlawful. scribed above in the section entitled "The Remedy" for Herein, I have found that Respondent has once again any loss of pay or other benefits suffered by reason of his committed an independent 8(a)(l) violation. Also, it has discriminatory layoff on November 27, 1979. been found Thomas' layoff is another example of Re- (b) Preserve and, upon request, make available to the spondent's continued discriminatory treatment of its em- Board or its agents, for examination and copying, all ployees. payroll records, social security payment records, time- The events herein cannot be judged in isolation. I cards, personnel records and reports, and all other re- view Thomas' leafleting activity as an extension of the organizational efforts of 1978 as fully described in Ad- In the event no exceptions are filed as provided by Sec. 102.46 of ministrative Law Judge Frank's decision. That decision the Rules and Regulations of the National Labor Relations Board, the was the subject of the leaflet distributed by Thomas. findings, conclusions, and recommended Order herein shall, as provided Herein, there simply is no basis to find Respondent has in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto recanted from its previous strenuous and illegal opposi- shall be deemed waived for all purposes. tion to its employees' union activity. Indeed, the Swift " If it is determined the reinstatement offer made to Thomas upon Mo- layoff imposed On Thomas reflects the Continuing vitality hammed's promotion in April 1980 was bona fide, no additional offer of Of Respondent's aversion to free exercise of Section 7 reinstatement need be made and the backpay hereunder shall be comput- ed in accordance with the Board's procedures in such cases. Similarly, if rights. As shown hereinabove, Respondent's Warning to the reinstatement offer was bona fide the next-to-last paragraph of the Thomas and his subsequent layoff are further evidence of notice attached hereto as an Appendix should be deleted and the follow- its complete disregard for employees' statutory rights. i'"B paragraph substituted: This is especially true when coupled with the Board's "WE HAVE OFFERED LAWRENCE THOMAS reinstatement to his determination in 250 NLRB 692. 9 Moreover, the repeti- former o r substantially equivalent job with us. without loss of senior- dtriaini25NL„621Moevrthreei iy or other rights, privileges and benefits; and we will make him whole, with interest, for all loss of pay and other benefits he suffered See Brooks Cameras, Inc., 250 NLRB 820 (1980). as a result of his discriminatory layoff on November 27, 1979." MAGNESIUM CASTING COMPANY, INC. 427 employee, to keep a low profile regarding his union ac- tious character of the discriminatory conduct found un- tivities in June 1979. lawful in the instant matter punctuates the need to elimi- 4. By laying off Lawrence Thomas on November 27, nate future recurrences. Accordingly, I conclude it is 1979, Respondent discriminated against its employees in necessary that the Order herein be coextensive with the violation of Section 8(a)(3) and (1) of the Act. degree of past misconduct and the threat of prospective 5. The aforesaid unfair labor practices affect commerce reiteration. within the meaning of Section 2(6) and (7) of the Act. The demonstrated proclivity to violate the Act war- rants a broad proscriptive order. Thus, the Order shall THE REMEDY require Respondent to refrain from, in any other manner, Having found that Respondent violated Section 8(a)(3) interfering w i t h , restraining, an d coercing it s employees and (1) of the Act, I shall recommend it cease and desist 7inth eeris o f t h e ri g h t s guarateed them by Section from engaging in such conduct in the future and affirma- , 7 of th At tively take such action as will dissipate the effects of its Upo n t h e ab o v e findings o f f ac t, conclusions of law, unfair labor practices. t h e entire record in this case, and pursuant to Section Because Thomas' November 27 layoff has been found 10(c) of t h e A ct, I hereby is s ue th e follo w ing recom- unlawful, the Order shall require Respondent to offer him full and immediate reinstatement to his former orORDER 10 substantially equivalent job, without prejudice to his se- niority or other rights and privileges; and to make him The Respondent, Magnesium Casting Company, Inc., whole for any loss of earnings he may have suffered as a Hyde Park, Massachusetts, its officers, agents, successors, result of the discrimination by payment of a sum equal to and assigns, shall: that which he would have earned, absent the discrimina- 1. Cease and desist from: tion, to the date of Respondent's offer of reinstatement. (a) Discriminating against its employees for engaging Loss of earnings shall be computed as prescribed in F. in union or other activity protected by the Act. W. Woolworth Company, 90 NLRB 289 (1950), plus inter- (b) Telling its employees to keep a low profile regard- est as set forth in Isis Plumbing & Heating Co., 138 ing their union activities. NLRB 716 (1962), and Florida Steel Corporation, 231 (c) In any other manner interfering with, restraining, NLRB 651 (1977). or coercing employees in the exercise of the rights guar- As previously noted, the Board (250 NLRB 692) held anteed in Section 7 of the Act, except to the extent that Respondent engaged in such extensive and egregious such rights might be affected by a lawful union-security unfair labor practices as warranted a broad cease-and- agreement in accord with Section 8(a)(3) of the Act. desist order. The events of the earlier cases occurred 2. Take the following affirmative action which it is more than 1 year before those litigated herein. As earlier found will effectuate the policies of the Act: noted, no evidence was adduced to show Respondent's (a) Offer Lawrence Thomas immediate and full rein- labor relations posture had changed before Thomas' statement to his former job or, if that position no longer layoff. Thornton, Emack, and Nichols were all Respond- exists, to a substantially equivalent position of employ- ent's supervisors during the earlier ligitated matters. ment, without prejudice to his seniority or other rights Each was involved, directly or indirectly, in the activi- and privileges," and make him whole in the manner de- ties which the Board has held unlawful. scribed above in the section entitled "The Remedy" for Herein, I have found that Respondent has once again any loss of pay or other benefits suffered by reason of his committed an independent 8(a)(l) violation. Also, it has discriminatory layoff on November 27, 1979. been found Thomas' layoff is another example of Re- (b) Preserve and, upon request, make available to the spondent's continued discriminatory treatment of its em- Board or its agents, for examination and copying, all ployees. payroll records, social security payment records, time- The events herein cannot be judged in isolation. I cards, personnel records and reports, and all other re- view Thomas' leafleting activity as an extension of the organizational efforts of 1978 as fully described in Ad- In the event no exceptions are filed as provided by Sec. 102.46 of ministrative Law Judge Frank's decision. That decision the Rules and Regulations of the National Labor Relations Board, the was the subject of the leaflet distributed by Thomas. findings, conclusions, and recommended Order herein shall, as provided Herein, there simply is no basis to find Respondent has in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto recanted from its previous strenuous and illegal opposi- shall be deemed waived for all purposes. tion to its employees' union activity. Indeed, the Swift " If it is determined the reinstatement offer made to Thomas upon Mo- layoff imposed On Thomas reflects the Continuing vitality hammed's promotion in April 1980 was bona fide, no additional offer of Of Respondent's aversion to free exercise of Section 7 reinstatement need be made and the backpay hereunder shall be comput- ed in accordance with the Board's procedures in such cases. Similarly, if rights. As shown hereinabove, Respondent's Warning to the reinstatement offer was bona fide the next-to-last paragraph of the Thomas and his subsequent layoff are further evidence of notice attached hereto as an Appendix should be deleted and the follow- its complete disregard for employees' statutory rights. i'"B paragraph substituted: This is especially true when coupled with the Board's "WE HAVE OFFERED LAWRENCE THOMAS reinstatement to his determination in 250 NLRB 692. 9 Moreover, the repeti- former o r substantially equivalent job with us. without loss of senior- dtriaini25NL„621Moevrthreei iy or other rights, privileges and benefits; and we will make him whole, with interest, for all loss of pay and other benefits he suffered See Brooks Cameras, Inc., 250 NLRB 820 (1980). as a result of his discriminatory layoff on November 27, 1979." MAGNESIUM CASTING COMPANY, INC. 427 employee, to keep a low profile regarding his union ac- tious character of the discriminatory conduct found un- tivities in June 1979. lawful in the instant matter punctuates the need to elimi- 4. By laying off Lawrence Thomas on November 27, nate future recurrences. Accordingly, I conclude it is 1979, Respondent discriminated against its employees in necessary that the Order herein be coextensive with the violation of Section 8(a)(3) and (1) of the Act. degree of past misconduct and the threat of prospective 5. The aforesaid unfair labor practices affect commerce reiteration. within the meaning of Section 2(6) and (7) of the Act. The demonstrated proclivity to violate the Act war- rants a broad proscriptive order. Thus, the Order shall THE REMEDY require Respondent to refrain from, in any other manner, Having found that Respondent violated Section 8(a)(3) interfering w i t h , restraining, an d coercing it s employees and (1) of the Act, I shall recommend it cease and desist 7inth eeris o f t h e ri g h t s guarateed them by Section from engaging in such conduct in the future and affirma- , 7 of th At tively take such action as will dissipate the effects of its Upo n t h e ab o v e findings o f f ac t, conclusions of law, unfair labor practices. t h e entire record in this case, and pursuant to Section Because Thomas' November 27 layoff has been found 10(c) of t h e A ct, I hereby is s ue th e follo w ing recom- unlawful, the Order shall require Respondent to offer him full and immediate reinstatement to his former orORDER 10 substantially equivalent job, without prejudice to his se- niority or other rights and privileges; and to make him The Respondent, Magnesium Casting Company, Inc., whole for any loss of earnings he may have suffered as a Hyde Park, Massachusetts, its officers, agents, successors, result of the discrimination by payment of a sum equal to and assigns, shall: that which he would have earned, absent the discrimina- 1. Cease and desist from: tion, to the date of Respondent's offer of reinstatement. (a) Discriminating against its employees for engaging Loss of earnings shall be computed as prescribed in F. in union or other activity protected by the Act. W. Woolworth Company, 90 NLRB 289 (1950), plus inter- (b) Telling its employees to keep a low profile regard- est as set forth in Isis Plumbing & Heating Co., 138 ing their union activities. NLRB 716 (1962), and Florida Steel Corporation, 231 (c) In any other manner interfering with, restraining, NLRB 651 (1977). or coercing employees in the exercise of the rights guar- As previously noted, the Board (250 NLRB 692) held anteed in Section 7 of the Act, except to the extent that Respondent engaged in such extensive and egregious such rights might be affected by a lawful union-security unfair labor practices as warranted a broad cease-and- agreement in accord with Section 8(a)(3) of the Act. desist order. The events of the earlier cases occurred 2. Take the following affirmative action which it is more than 1 year before those litigated herein. As earlier found will effectuate the policies of the Act: noted, no evidence was adduced to show Respondent's (a) Offer Lawrence Thomas immediate and full rein- labor relations posture had changed before Thomas' statement to his former job or, if that position no longer layoff. Thornton, Emack, and Nichols were all Respond- exists, to a substantially equivalent position of employ- ent's supervisors during the earlier ligitated matters. ment, without prejudice to his seniority or other rights Each was involved, directly or indirectly, in the activi- and privileges," and make him whole in the manner de- ties which the Board has held unlawful. scribed above in the section entitled "The Remedy" for Herein, I have found that Respondent has once again any loss of pay or other benefits suffered by reason of his committed an independent 8(a)(l) violation. Also, it has discriminatory layoff on November 27, 1979. been found Thomas' layoff is another example of Re- (b) Preserve and, upon request, make available to the spondent's continued discriminatory treatment of its em- Board or its agents, for examination and copying, all ployees. payroll records, social security payment records, time- The events herein cannot be judged in isolation. I cards, personnel records and reports, and all other re- view Thomas' leafleting activity as an extension of the organizational efforts of 1978 as fully described in Ad- In the event no exceptions are filed as provided by Sec. 102.46 of ministrative Law Judge Frank's decision. That decision the Rules and Regulations of the National Labor Relations Board, the was the subject of the leaflet distributed by Thomas. findings, conclusions, and recommended Order herein shall, as provided Herein, there simply is no basis to find Respondent has in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto recanted from its previous strenuous and illegal opposi- shall be deemed waived for all purposes. tion to its employees' union activity. Indeed, the Swift " If it is determined the reinstatement offer made to Thomas upon Mo- layoff imposed On Thomas reflects the Continuing vitality hammed's promotion in April 1980 was bona fide, no additional offer of Of Respondent's aversion to free exercise of Section 7 reinstatement need be made and the backpay hereunder shall be comput- ed in accordance with the Board's procedures in such cases. Similarly, if rights. As shown hereinabove, Respondent's Warning to the reinstatement offer was bona fide the next-to-last paragraph of the Thomas and his subsequent layoff are further evidence of notice attached hereto as an Appendix should be deleted and the follow- its complete disregard for employees' statutory rights. i'"B paragraph substituted: This is especially true when coupled with the Board's "WE HAVE OFFERED LAWRENCE THOMAS reinstatement to his determination in 250 NLRB 692. 9 Moreover, the repeti- former o r substantially equivalent job with us. without loss of senior- dtriaini25NL„621Moevrthreei iy or other rights, privileges and benefits; and we will make him whole, with interest, for all loss of pay and other benefits he suffered See Brooks Cameras, Inc., 250 NLRB 820 (1980). as a result of his discriminatory layoff on November 27, 1979." 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cords necessary to analyze the amount of backpay and an authorized representative of Respondent, shall be interest due under the terms of this Order. posted by Respondent immediately upon receipt thereof, (c) Post at its Hyde Park, Massachusetts, location and be maintained by it for 60 consecutive days thereaf- copies of the attached notice marked "Appendix." 2 ter, in conspicuous places, including all places where no- Copies of said notice, on forms provided by the Re- tices to employees are customarily posted. Reasonable gional Director for Region 1, after being duly signed by steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other " In the event that this Order is enforced by a Judgment of a United material. States Court of Appeals, the words in the notice reading "Posted by (d) Notify the Regional Director for Region 1, in writ- Order of the National Labor Relations Board" shall read "Posted Pursu- ing, within 20 days from the date of this Order, what ant to a Judgment of the United States Court of Appeals Enforcing an s s Rt h t t c Order of the National Labor Relations Board." Respondent has taken to comply herewith. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cords necessary to analyze the amount of backpay and an authorized representative of Respondent, shall be interest due under the terms of this Order. posted by Respondent immediately upon receipt thereof, (c) Post at its Hyde Park, Massachusetts, location and be maintained by it for 60 consecutive days thereaf- copies of the attached notice marked "Appendix."" ter, in conspicuous places, including all places where no- Copies of said notice, on forms provided by the Re- tices to employees are customarily posted. Reasonable gional Director for Region 1, after being duly signed by steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other " In the event that this Order is enforced by a Judgment of a United material. States Court of Appeals, the words in the notice reading "Posted by (d) Notify the Regional Director for Region 1, in writ- Order of the National Labor Relations Board" shall read "Posted Pursu- ing, within 20 days from the date of this Order, what ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." steps Respondent has taken to comply herewith. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cords necessary to analyze the amount of backpay and an authorized representative of Respondent, shall be interest due under the terms of this Order. posted by Respondent immediately upon receipt thereof, (c) Post at its Hyde Park, Massachusetts, location and be maintained by it for 60 consecutive days thereaf- copies of the attached notice marked "Appendix."'" ter, in conspicuous places, including all places where no- Copies of said notice, on forms provided by the Re- tices to employees are customarily posted. Reasonable gional Director for Region 1, after being duly signed by steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other " In the event that this Order is enforced by a Judgment of a United material. States Court of Appeals, the words in the notice reading "Posted by (d) Notify the Regional Director for Region 1, in writ- Order of the National Labor Relations Board" shall read "Posted Pursu- ing, within 20 days from the date of this Order, what ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." steps Respondent has taken to comply herewith. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cords necessary to analyze the amount of backpay and an authorized representative of Respondent, shall be interest due under the terms of this Order. posted by Respondent immediately upon receipt thereof, (c) Post at its Hyde Park, Massachusetts, location and be maintained by it for 60 consecutive days thereaf- copies of the attached notice marked "Appendix."" ter, in conspicuous places, including all places where no- Copies of said notice, on forms provided by the Re- tices to employees are customarily posted. Reasonable gional Director for Region 1, after being duly signed by steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other " In the event that this Order is enforced by a Judgment of a United material. States Court of Appeals, the words in the notice reading "Posted by (d) Notify the Regional Director for Region 1, in writ- Order of the National Labor Relations Board" shall read "Posted Pursu- ing, within 20 days from the date of this Order, what ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." steps Respondent has taken to comply herewith.