Plumbers Local 198

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 198, AFL- CIO, Health and Welfare Trust Fund and Office and Professional Employees International Union, Local Union 383, AFL-CIO. Case 15- CA-12531 September 5, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND Fox The issues presented for Board review are whether the judge correctly found that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off employee Leslie Robertson-Jordan and further violated Section 8(a)(1) by interrogating employees about their union activities.¹ The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,2 and conclusions,³ and to adopt the recommended Order as modified and set forth in full below.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 198, AFL- CIO, Health and Welfare Trust Fund, Baton Rouge, Louisiana, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Laying off or otherwise discriminating against any employee for supporting Office and Professional Employees International Union, Local 383, AFL-CIO (Local 383), or any other union. (b) Coercively interrogating any employee about union support or union activities. 1 On March 15, 1996, Administrative Law Judge Richard J. Linton issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed an answering brief. ²The Respondent has excepted to some of the judge's credibility findings. The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. ³We do not rely on the judge's irrelevant speculation about how the Respondent's agents might conduct negotiations if they were representing the Respondent's clerical unit employees. 4We shall modify the judge's recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (1996). (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Leslie Robertson-Jordan full reinstatement to her former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. (b) Make Leslie Robertson-Jordan whole for any loss of earnings and other benefits suffered as a result of the discrimination against her, in the manner set forth in the remedy section of the judge's decision. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful layoff of Robertson-Jordan on January 17, 1994, and within 3 days thereafter notify the employee in writing that this has been done and that the layoff will not be used against her in any way. (d) Preserve and, within 14 days of a request, make available to the Board or its agents for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its office in Baton Rouge, Louisiana, copies of the attached notice marked "Appendix."5 Copies of the notice, on forms provided by the Regional Director for Region 15, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since January 17, 1994. (f) Within 21 days after service by the Region, file with the Regional director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 5 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." 322 NLRB No. 16 PLUMBERS LOCAL 198 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representatives of their own choice To act together for other mutual aid or protection To choose not to engage in any of these protected concerted activities. WE WILL NOT lay you off or otherwise discriminate against any of you for supporting the Office and Professional Employees International Union, Local 383, AFL-CIO (Local 383), or any other union. WE WILL NOT coercively question you about your union support or activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of rights guaranteed in Section 7 of the Act. WE WILL, within 14 days from the date of the Board's Order, offer Leslie Robertson-Jordan full reinstatement to her former job, or if that job no longer exists, to a substantially equivalent position, without prejudice to her seniority or any other rights or privileges previously enjoyed. WE WILL make Leslie Robertson-Jordan whole for any loss of earnings and other benefits resulting from her discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board's Order, remove from our files any reference to the unlawful layoff of Leslie Robertson-Jordan and WE WILL, within 3 days thereafter, notify her in writing that this has been done and that the discharge will not be used against her in any way. UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPEFITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL 198, AFL-CIO, HEALTH AND WELFARE TRUST FUND Zoe Panarites, Esq. and (trial only) Andrea J. Goetze, Esq., for the General Counsel. Louis L. Robein Jr., Esq. ((Robein, Urann & Lurye), of Metairie, Louisiana, for the Respondent Trust Fund. DECISION STATEMENT OF THE CASE RICHARD J. LINTON, Administrative Law Judge. In this layoff case, Respondent Fund's defense is that economic necessity drove it to lay off one claims processor on January 17, 1994, and that it selected 18-year employee Leslie Robertson-Jordan (the most senior employee, and with no advance notice) for that layoff for nondiscriminatory reasons. Finding that the Fund used the economic defense as a pretext (there was no economic necessity for a January 1994 layoff) to get rid of Robertson-Jordan, OPEIU Local 383's representative on the Fund's office staff, and that Robertson-Jordan's layoff was unlawful, I order the Fund to reinstate Robertson-Jordan and to make her whole, with interest. On January 17, 1994, Gene Pourciau, the Fund's administrative manager, told Leslie Robertson-Jordan to leave the premises that day, that she was laid off effective 2 days later. Robertson-Jordan and her coworkers were shocked. By coincidence of date, 79 years' earlier, on January 17, 1915, Ralph Chaplin wrote "Solidarity Forever." As Edith Fowke and Joe Glazer tell us, in "Songs of Work and Protest" (1973, Dover Publications) at 13, "Solidarity Forever" "is the most popular union song on the North American continent. If a union member knows only one union song it is almost sure to be this. It has become, in effect, the anthem of the American labor movement." The solidarity of the Government's employee witnesses here, three women (not counting the laid-off Robertson-Jordan), in the face of the earlier persistent efforts (amounting to intimidation) by Administrator Pourciau to persuade them to drop their membership in OPEIU Local 383, enabled the Government to prove its complaint allegation that the January 1994 layoff of Leslie Robertson-Jordan was unlawful. Their courage (testifying favorably for Robertson-Jordan and in opposition to the person, Administrator Pourciau, who holds economic power over them) and determination call to mind the refrain of Ralph Chaplin's 1915 song: Solidarity forever! Solidarity forever! Solidarity forever! For the union makes us strong. "Songs of Work and Protest," Id. at 12, 13. I presided at the 2-day trial in Baton Rouge, Louisiana, on July 10-11, 1995, pursuant to the June 23, 1995 second amended complaint and notice of hearing (complaint) issued by the General Counsel of the National Labor Relations Board (the Board) through the Acting Regional Director for Region 15. The complaint is based on a charge filed March 23, 1994 (an amended charge was filed June 23), by Office and Professional Employees International Union, Local 383, AFL-CIO (the Union, Local 383, or the Charging Party) against United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD States and Canada, Local 198, AFL-CIO, Health and Welfare Trust Fund (Respondent, Fund, or Employer). Complaint paragraph 7 alleges that, about December 1993 and again about January 7, 1994, the Fund, by Administrator Gene Pourciau, interrogated Fund employees about their union membership, activities, and sympathies. Paragraph 10 alleges the interrogation as a violation of Section 8(a)(1) of the Act. Respondent Fund denies both allegations. Complaint paragraph 8, in conjunction with paragraphs 9 and 11, alleges that the Fund violated Section 8(a)(3) and (1) of the Act by discharging Leslie Robertson-Jordan about January 17, 1994, because of her concerted activities and activities on behalf of the Union, OPEIU Local 383. Denying any violation, the Fund admits that Robertson "was subject to a reduction in force on or about January 17, 1994." As clarified at the opening of the trial (Tr. 1:6-7),¹ the pleadings establish, and I find, that Respondent, an organization headquartered in Baton Rouge, Louisiana, manages a health and welfare trust fund, that the Fund is a statutory employer, that OPEIU Local 383 is a statutory labor organization, and that the Board has both statutory and discretionary jurisdiction. Attached to the Government's posthearing brief is the General Counsel's unopposed motion to correct the transcript. Most of the suggested corrections, as well as others not cited (such as substituting "Local" for "Over" at Tr. 2:483:24) are minor errors of spelling or wrong words obvious from the context (such as "too" for "to") which do not justify the time necessary to check and approve the list. As stated in Formosa Plastics Corp., 320 NLRB 631, 659 (1996), "Ordinarily it is sufficient for such motions to focus on errors that can cause confusion if not corrected." Although I grant the General Counsel's motion in general, I do not do so respecting Transcript 2:472:18 (to change Goetze to Robein). At that point it appears to me that Attorney Goetze started to register an objection and then withdrew it. Concerning corrections, one reference in the General Counsel's posthearing brief needs correcting. At footnote 8, page 6, the General Counsel quotes me as asserting that I supposed Robertson-Jordan, the alleged discriminatee, engaged in a lot of union activities away from the Fund office and that Administrator Pourciau knew about them. Although the rendering in the record, at Transcript 2:428:22-23, does not supply a negative or a question mark, my expression was in the nature of a hypothetical question as to relevance, and line 23 should have a negative. Whether the fault is mine or the reporter's is immaterial, for it should be obvious that I was not undertaking to presume that Pourciau knew about any union activities by Robertson-Jordan away from the Fund's office. A similar problem appears at Transcript 1:183:17-19 where the record does not supply a capitalization or a question mark for my question to the General Counsel. I now correct those lines to read: JUDGE LINTON: But my question to you is: The Government is not contesting any economic need for the layoff of Robertson-Jordan? Of course, my question should have asked about the economic need to lay off one person, not specifically Robertson- Jordan. I interpret the General Counsel's response to my question here (Tr. 1:183), and later (Tr. 1:217), to be that the Government does not contest the Fund's economic need to lay off one person. The Government clearly contends that the selection of Robertson-Jordan was unlawful.² Notwithstanding the Government's expression that it was not contesting the economic need for a layoff, evidence (as I describe below) was later introduced, without objection, suggesting that there was no such need. On brief the General Counsel (Br. 13 and fns. 15, 14) implies, without directly stating, that the evidence shows there indeed was no need to lay off anyone. On the entire record, including my observation of the demeanor of the witnesses, and after consideration of the briefs filed by the General Counsel and Local 198, I make the following FINDINGS OF FACT 1 References to the two-volume transcript of testimony are by volume and page (Tr.). Exhibits are designated G.C. Exh. for the General Counsel's and R. Exh. for those of the Respondent's Fund. I. BACKGROUND A. The Fund's Business Operation Pipe Fitters Local 198 has collective-bargaining agreements (CBAs) with various employers, and these CBAs provide for the establishment of three trust funds for participating employees and members who are referred to the various employer's in the construction industry. (Tr. 1:44; 2:463- 464; R. Exh. 1 at internal 5-6.) The three trust funds are: (1) Health and Welfare (the fund involved here), (2) Pension, and (3) Education. (Tr. 1:41, 127.) The separate funds are administered from the same facility. (Tr. 1:49, 128.) The Education Fund is principally concerned with the training of students, and the office function for that fund is merely payroll and bookkeeping. (Tr. 1:127-128.) Hours worked by participants, as reported by the contractor employer's, are computer recorded at the Fund office, and such credited hours determine eligibility for benefits under the health and welfare plan and under the pension plan. (Tr. 1:44-45, Pourciau.) The health and welfare plan (administered and paid for by the Fund) is mainly concerned with medical benefits, and much of the work of Fund employees is (or was) devoted to the processing of claims by plan participants (which includes retirees), and their covered dependents, for medical benefits. (Tr. 1:44-47; R. Exh. 1.) The health and welfare plan has about 1000 to 1200 active (employed) participants, and, until drastic cuts were made in the plan, another 400 to 450 retiree participants, plus their covered dependents. (Tr. 1:44, 46, 136-137.) Although witnesses and parties, even on brief, refer to the Funds as being for "members," I understand that to be simply a colloquial expression meaning either members of the plans or, possibly, recognition that the great majority of participants in the trust plans happen to be members of Local 198. Of course, any employee, not a member of Local 198, who is referred frequently enough, from any exclusive hiring ²In June 1994, following her layoff in January 1994, Leslie Robertson married and assumed the name of Robertson-Jordan. (Tr. 2:395.) Accordingly, in this decision I use Robertson-Jordan's current name. In earlier years at the Fund, Robertson-Jordan had a different name (Tr. 1:70, 253), perhaps her maiden name. PLUMBERS LOCAL 198 hall of Local 198, to qualify for participation in the trust plans, would, by law, be entitled to participant status regardless of his lack of membership in Local 198. Since 1991 Gene Pourciau has been the administrator, or administrative manager, of the Fund. (Tr. 1:41-42.) Pourciau reports to the Fund's joint labor-management board of trustees (BOT). The BOT consists of 10 trustees, with 5 selected by Local 198 and 5 selected by the contractors. (Tr. 1:41, 49; 2:464-465; R. Exh. 1 at internal 5-7.) The only trustee of particular relevance here is Louis J. LeBlanc, the business manager and financial secretary of Local 198 (Tr. 1:50; 2:463; R. Exh. 6 at 1), who is a member of the BOT by virtue of his position at Local 198. (Tr. 2:464-465.) As Pourciau expresses it (Tr. 1:50), LeBlanc is Local 198's chief executive officer (CEO). Pourciau views LeBlanc as being his "boss" or at least one of his bosses. (Tr. 1:115.) LeBlanc agrees (Tr. 2:483), while observing (Tr. 2:463, 483, 522) that Local 198's 2600 members are his boss. Before he became administrator of the three funds, Pourciau was a long-time member of Local 198, a former business agent of Local 198, and himself a former member of the BOT. (Tr. 1:42-43.) When Pourciau was a business agent, LeBlanc testified (Tr. 2:483), Pourciau was LeBlanc's boss. B. Hard Times at the Fund Beginning about the late 1980s, Pourciau testified (Tr. 1:58), the Fund began experiencing annual operating deficits. By December 1992 the annual deficits accumulated to a total debt of nearly $7 million. (R. Exh. 1 at 1.) One cause of the problem was a reduction in contributions by employer's with no reduction in benefit levels paid to plan participants. (R. Exh. 1 at 1.) At the first of January 1993, the Fund's auditor told Pourciau that the Fund would be insolvent in about 6 months. (Tr. 1:58.) A special meeting of the BOT was held on January 13, 1993. In the week before that special meeting, LeBlanc told Pourciau to begin a reduction of force (ROF). (Tr. 1:60.) LeBlanc, who campaigned for business manager in 1992 on a platform of financial reform of the Welfare Fund, as the Fund is commonly called, was of the view that if plan participants were going to have to sacrifice with a reduction of benefits, then the Fund's office personnel should also take cuts. (Tr. 2:472, 503.) Pourciau shared that view. (Tr. 1:60, 136.) At the special meeting of January 13, 1993, the BOT decided on draconian cuts in benefits effective February 1, 1993. (R. Exh. 1.) As Pourciau expresses it, the plan was "butchered." (Tr. 1:59, 134, 137.) For example, the prescription drug plan was eliminated, the plan's cost-sharing formula was changed from 80/20 to 70/30, the deductible was more than doubled from $200 to $500, and eligibility was increased from 300 to 350 hours worked per quarter in covered employment. (R. Exh. 1.) One near term effect of the changes was that some 108 retirees withdrew from the program. (Tr. 1:137.) As only the Health and Welfare Fund was experiencing financial distress (the Pension Fund enjoys an asset total of $133 million; Tr. 1:127), cost cutting at the office had to take place "on the Welfare side." (Tr. 1:132, Pourciau.) Following LeBlanc's early January 1993 instruction, Pourciau laid off three employees from the Fund (Tr. 1:63): Elaine Carrier, Kelly Holland, and Danny Pourciau. As his name suggests, Danny Pourciau is Administrator Pourciau's son. (Tr. 1:64, 76.) The three were tendered layoff letters (G.C. Exhs. 2-4), dated January 28, giving them a 2-week notice, with the effective date of their layoffs being February 11, 1993. (Tr. 1:65-67.) As shown in the following table, the three had little seniority. Kelly was a claims processor, and Carrier and Danny Pourciau were mail clerks. (Tr. 1:70.) Immediately before the February 1993 layoff, the first of three, the office staff working for Administrator Pourciau consisted of (Tr. 1:63-77): Names Hire Date Laid Off Leslie Robertson-Jordan 2-16-76 1-17-94 Nancy S. Jeansonne 11-2-76 Retained Marie McDowell 2-28-773 Retained Merlis Stuart 1-31-79 Retained Sandra Stroughter 8-4-874 5-5-93 Elaine Carrier 3-89 2-11-93 Kelly Holland 7-14-92 2-11-93 Daniel E. Pourciau 12-15-92 2-11-93 As the foregoing table shows, the second round of cutbacks eliminated another claims processor, Sandra Stroughter, on May 5, 1993. (Tr. 1:72.) Effective July 1, 1993, the Fund contracted out to Blue- Cross the work of processing most of the medical claims. (Tr. 1:78, 267; 2:469-470; R. Exh. 6 at 2.) Because of a lag time by participants in filing claims for medical bills incurred before July 1, there was not an immediate decline in the processing workload. Indeed, Pourciau recognized that many participants would wait until the end of the year to file their claims. (Tr. 1:78.) As of July 1, 1993, the Fund had two claims processors-Robertson-Jordan (Tr. 1:144) and Nancy S. Jeansonne (Tr. 1:81, 143). Eventually the claims processing at the Fund was reduced because, as Jeansonne testified (Tr. 1:266), Blue-Cross was processing most of the claims. The Fund continued to process claims by retiree participants for whom the Fund provided medical coverage which supplemented the Medicare coverage of the retirees. (Tr. 1:45-47, 229, 252.) Administrator Pourciau testified that, by September 1993, he recognized that by about December the Fund "probably" would need no more than one claims processor. (Tr. 1:77.) Because that timing placed the layoff too close to Christmas, Pourciau postponed the layoff until January 1994. (Tr. 1:78.) As editor-in-chief of Local 198's newsletter (Tr. 2:467), Business Manager Louis J. LeBlanc wrote, in the first issue, October 1993, as follows (R. Exh. 6 at 3; Tr. 2:468-471) (emphasis added): ³The record gives two dates in February 1997 (Tr. 1:75; 2:388- 389); I list the one as recalled by McDowell. The difference is immaterial here. ⁴Pourciau testified that Stroughter originally was hired August 27, 1979, laid off June 8, 1987, and "rehired" August 4, 1987. (Tr. 1:76.) In the past, seniority apparently consisted of "continuous" service, including "authorized leaves," but apparently did not accrue during layoffs. (G.C. Exh. 6 at 3-4.) DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD HEALTH & WELFARE NEWS After only three meetings of the Board of Trustees, Richard [Business Agent Richard Breaud] and I found the Health & Welfare was losing over a million dollars per year for the past six years. The auditors informed the Board of Trustees if we did not make big changes, the Federal Government would close the doors on the Fund. It took quite some time to get the new program started. However, we were not getting much help from some of our advisors. After January 1, 1994 we will have only one advisor employed by the Fund and that is our Attorney. Other changes had to be made, the Fund went from having eight employees to four and we are anticipating the reduction of some more. Asked why he had written that a further reduction was anticipated, LeBlanc testified (Tr. 2:471): Because I didn't feel like we needed as many employees as we had back there [a reference to the back of the office where the Fund's clerical staff worked] when the workload coming-we didn't have near as much workload as we had before. We didn't have as much claims coming in. And we didn't need as many processors. And (Tr. 2:472): Because we didn't need as many employees as we had back then [before the cuts in the program and the switch to Blue Cross]. I mean, we were paying for something that we didn't need. As of January 1994, with the clerical staff having been reduced by half, from eight to four, in 1993, the remaining four clericals were Robertson-Jordan, Nancy Jeansonne, Marie McDowell, and Merlis Stuart. Robertson-Jordan and Jeansonne were processing claims, McDowell did the bookkeeping, keypunching, and self-pay, and Stuart handled the pension work. (Tr. 2:348, McDowell.) LeBlanc testified that only one claims processor was needed, and that he recommended to Pourciau that Pourciau select Robertson-Jordan for layoff. (Tr. 2:473, 499, 500.) Although at one point characterizing Robertson-Jordan's selection as his own decision (Tr. 2:473), LeBlanc clarified that to acknowledge (Tr. 2:520-521) that it really was his "strong suggestion" ("Robertson-Jordan had to be laid off") that Administrator Pourciau could have disregarded if Pourciau did not care about the consequences of disregarding LeBlanc's "strong suggestion." Pourciau testified that in January he decided to lay off Robertson-Jordan because he no longer needed her. (Tr. 1:77-78, 109.) On Monday, January 17, 1994, Pourciau called in Robertson-Jordan and, with no advance notice and telling her to leave that very day, Pourciau laid off Robertson-Jordan effective January 19, 1994. The extra 2 days apparently compensated her for 2 days of accrued vacation leave. Pourciau gave Robertson-Jordan a "pink slip" stating "Reduction in force."⁵ (Tr.1:108; 2:420-421.) C. Collective-Bargaining History There is a dispute concerning whether the Fund and the Union (Charging Party Local 383) had a CBA during the relevant time. All agree that one existed at least from May 1, 1983, through April 30, 1985, that a copy of that contract is in evidence (G.C. Exh. 6), and that it contains an "evergreen clause" continuing the agreement in effect "year to year" unless (G.C. Exh. 6 at 10) written notice is given. As we have no refusal to bargain allegation here, the main relevance of the CBA, particularly its recent history, is its connection, as the General Counsel argues (Tr. 1:27, 196), to the Fund's asserted motivation. From the Government's opening statement (Tr. 1:22) to its posthearing brief (Br. 3), the General Counsel argues that, beginning in 1992 "for reasons unknown to the General Counsel," the Fund began a campaign to rid itself of the Union. Notwithstanding that "for reasons unknown" statement, the General Counsel elicited an admission by Administrator Pourciau that, several times before May 1993, he had suggested to Fund employees that, if they were dissatisfied with Local 383, they should turn to Business Manager LeBlanc for representation by Local 198 as the clerical staff of a Local in New Orleans had done. (Tr. 1:98-99.) The New Orleans local is Local 60.6 (Tr. 2:535, LeBlanc.) For his part, LeBlanc would prefer that some other AFL-CIO union represent the Fund's clerical staff. Nevertheless, if the clericals desire for him to represent them, "I sure will." (Tr. 2:534, 535.) [Testimony did not address how Pourciau and LeBlanc would handle the obvious conflict of interest. Thus, at the bargaining table LeBlanc, wearing his Local 198 hat, apparently would propose a contractual provision to Administrator Pourciau. Then LeBlanc, switching to his Local 198 and BOT trustee hat, would quickly run around the table to Pourciau where LeBlanc, in his capacity as Pourciau's "boss" at the Fund, would whisper in Pourciau's ear the response Pourciau should make on behalf of the Fund to LeBlanc when LeBlanc, again wearing his Local 198 hat, had resumed his seat across the table from Pourciau.] As late as May 29, 1992, the Fund recognized the Union. On that date Pourciau presented to Robertson-Jordan the Fund's proposal (G.C. Exh. 7) for a renewal contract. (Tr. 1:92; 2:418-419, 444.) Ruh testified that no timely proposal was submitted during the notice window. (Tr. 1:190.) In correspondence thereafter, concerning a grievance pertaining to former employee Ida Cogley, the Fund, by Attorney Robein in a letter (R. Exh. 4) dated June 17, 1992, expressed the position, that "the OPEIU agreement has expired." Responding by letter of July 17 (R. Exh. 3), Ruh stated, in part, that the 1983 contract "is in full force and effect at this time as no negotiations have taken place since the signing of the agreement." In early December 1992, Ruh forwarded to Robertson-Jordan a draft (G.C. Exh. 18) of an article-by-article response to Pourciau's "proposed changes" in the contract. (Tr. ⁵The General Counsel declined to mark or offer the layoff slip into evidence. (Tr. 2:421.) ⁶See Plumbers Local 198 (Stone & Webster), 319 NLRB 609, 610 (1995). PLUMBERS LOCAL 198 2:457.) Robertson-Jordan concedes that she does not know whether the document, or, presumably, any revised version, was ever submitted to Pourciau. (Tr. 2:460.) As a witness, Ruh was not asked about the document. Before proceeding into 1993, I should note a topic of some relevance on the opposing views about the role of seniority in any layoffs, terminations, recalls, and such. In the original contract, seniority is not mentioned in the article in which layoffs are an express topic, but elsewhere the contract provides that, in matters of hiring, promotion, demotion, and discharge, seniority will be only one factor to be considered "along with qualifications and job performance through evaluation." (G.C. Exh. 6 at 7.) Pourciau concedes that he never prepares performance evaluations. (Tr. 1:85.) Pourciau's May 29, 1992 proposal would have added to the seniority article, article VI, "Seniority," a provision, as part of section 4, that seniority "will be considered as a factor, but not the only factor, in determining the order or priority of layoffs." (G.C. Exh. 7 at internal 3.) Ruh's December 1992 draft would modify Pourciau's proposed section 4 to fix seniority as "the sole determining factor" respecting layoffs. (G.C. Exh. 18 at 1.) As already summarized, the February 1993 layoffs did honor seniority. Whether that was by chance or design is not expressly stated in the record. Nevertheless, I infer, and find, that Pourciau selected those for layoff on the basis of seniority. I further note that the written 2-week notice which Pourciau provided to the three employees laid off in February 1993 conforms to the provision of both the 1983-1985 contract (G.C. Exh. 6 at 7), and to Pourciau's May 1992 proposal (G.C. Exh. 7 at 7), that, for layoffs and dismissal of full-time employees, the Fund shall provide a 2-week notice and give the "reason in writing." None of the three was a member of Local 383. (Tr. 1:216, Ruh.) When union member Sandra Stroughter was laid off in early May 1993, she received no advance notice. (Tr. 1:240, Jeansonne.) Pourciau contends that he stopped giving notice because Elaine Carrier, laid off effective February 11, 1993, took sick leave and did not work thereafter. (Tr. 1:79, 108.) But Pourciau paid Robertson-Jordan her accumulated vacation leave when he laid her off, yet he told her to leave that very day. I do not credit Pourciau respecting the reason he gives for not giving Robertson-Jordan a 2-week advance notice. By letter dated March 16, 1993 (G.C. Exh. 8), Pourciau, as authorized by the BOT (Tr. 2:491-492), wrote Ruh (Tr. 1:100, 162-163, 170) that everything indicated that "your local union has abandoned the bargaining unit." "Although the Funds contend that the 1983 agreement expired years ago, let this letter serve as notice of an intent to terminate that agreement, if you contend it is now in effect." Finally, checkoff of dues for OPEIU members "will terminate effective April 1, 1993." Responding by letter (G.C. Exh. 9) dated May 7, 1993, Ruh advised Pourciau that Local 383 still considered the contract in effect, that there had been no abandonment of the bargaining unit, that Local 383 has signed cards from unit employees, that the Fund was acting unlawfully, and that Ruh and unit employees wished to meet as soon as possible to "renegotiate this contract." Ruh concluded by expressing a formal request for a meeting within 10 days. (Tr. 1:104, 171.) Ruh testified that she could never secure a meeting with Pourciau because he always said he needed to refer this to the BOT and to the Fund's attorney. (Tr. 1:171, 193-194.) By letter dated May 12, 1993 (G.C. Exh. 13), Attorney Robein, on behalf of the BOT, replied to three letters from Ruh, including the May 7 letter (G.C. Exh. 9) just described. (Tr. 1:166.) Among other topics, the letter reiterates the Fund's view that "the 1983 bargaining agreement has long since expired." On January 7, 1994, Ruh called Pourciau to arrange a bargaining session. Pourciau said, "Ruh had no authority because there were not enough employees to warrant a contract." (Pourciau admits speaking to Ruh about this time. Tr. 1:94. I do not credit Pourciau's denial, Tr. 1:94, that he expressed doubt to Ruh that she had majority status.) Ruh replied that "a contract existed and that Local 383 had a majority, that employees had signed cards, and that the employees wanted an agreement." Pourciau said he would refer the matter to the BOT and its attorney at the BOT's scheduled meeting of January 13. Ruh asked Pourciau to call her the day after the BOT meeting. Ruh followed up the conversation with her letter of January 10 (a Monday) to Pourciau. (Tr. 1:110, 173-174.) As expressed in the conversation and in the letter, Ruh set a deadline of Friday, January 14, 1994, to hear from Pourciau. Ruh also sent January 10 letters to LeBlanc (G.C. Exh. 14), as "Chair" of the BOT,7 and to Trustee Charlie Bernhard (G.C. Exh. 15), informing each of her January 7 conversation with Pourciau and asking that the matter be placed on the BOT's January 13 agenda. In short, Ruh finally appeared to be taking serious action. Enclosed with Ruh's January 10 letter (G.C. Exh. 11) to Pourciau was an updated version of Local 383's contract proposal. In an apparent modification of the seniority article, section 4, the least senior person would be laid off first "among employees qualified to perform the tasks required." (G.C. Exh. 11 at 4.) However, in article XIV, for termination and layoffs (written notice would be increased to 4 weeks), the employee first laid off "shall be 1. non-union, 2. least in seniority." (G.C. Exh. 11 at 8; 1:202-203.) Pourciau testified that he had never proposed any concept of first laying off nonunion employees before reaching any other employees. (Tr. 1:133.) Ruh did not hear from Pourciau on Friday, January 14, 1994, or at any time thereafter concerning her request for negotiation. (Tr. 1:179.) As we know, on Monday, January 17, 1994, Administrator Pourciau called in Robertson-Jordan and, telling her to leave the office that day, laid her off effective 2 days' later. II. ALLEGED UNFAIR LABOR PRACTICES A. Interrogation by Administrator Pourciau 1. Facts Complaint paragraph 7 alleges unlawful interrogations by Administrator Pourciau on two occasions-about December 1993 and again about January 7, 1994. No evidence appears concerning the December 1993 allegation, and the General Counsel apparently relies only on the incident allegedly occurring about January 7. ⁷Ruth testified she understood that LeBlanc was the BOT's chair. (Tr. 1:174.) Record evidence is insufficient for a determination. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD A few paragraphs above, I summarized certain events from January 7-17, 1994, beginning with Ruh's call to Pourciau on (Friday) January 7. As we are about to see, at some point following this call from Ruh, Pourciau went to the women and questioned them concerning whether they were members of the Union. Recall that effective April 1, 1993, the Fund ceased deducting union dues. (Tr. 1:95; G.C. Exh. 8.) Previously, Pourciau admits, dues checkoff had been made for most of the unit employees. (Tr. 1:96.) After the Fund ceased deducting membership dues for remitting the Local 383, Pourciau, as he concedes (Tr. 1:96), had no way of knowing who was a member of OPEIU Local 383. Although the witnesses do not give the exact date that Pourciau questioned them, Pourciau could well have begun his questioning on January 7 right after Ruh called him. But by her May 7, 1993 (G.C. Exh. 9) letter, to Pourciau, Ruh had "formally" requested a resumption of negotiations "within ten (10) days from this date." Nothing happened. Although Ruh, in the January 7, 1994 call, did ask that Pourciau call her on (Friday) January 14, this time Ruh followed up with her letter of (Monday) January 10 to Pourciau in which she set January 14 as a deadline. Not only did she write Pourciau, but she even sent copies of the correspondence to trustee LeBlanc (G.C. Exh. 14), and to trustee Bernhard (G.C. Exh. 15) in advance of the BOT's meeting scheduled for January 13. In light of this firestorm of activity by Ruh, it is reasonable to find, as I do, that Pourciau began his questioning after he received his letter and, doubtlessly, learned that Ruh had also written letters to BOT's trustees, LeBlanc and Bernhard. As the mail destination was local, I find that it arrived on Tuesday, January 11, and that it most likely was later that very day that Administrator Pourciau went to the women and questioned them. I so find. Approximating the time as May 1993, Pourciau concedes that, during a 5-minute span one day, and from "curiosity" arising during a conversation with Merlis Stuart, he asked whether Stuart was still paying dues to the Union. Her "Not at this time" answer surprised him. He then went to the bookkeeper, Marie McDowell, and asked her. McDowell replied that she was "still a member paying dues." To Pourciau's question, Nancy Jeansonne advised that she was still paying, as did Robertson-Jordan.⁸ Pourciau denies asking his employees again after May 1993 "about their union affiliation." (Tr. 1:96-98.) I do not credit Pourciau's denial. Bookkeeper Marie McDowell testified that, shortly before Robertson-Jordan's termination in January 1990, when McDowell was in the office of Merlis Stuart, Administrator Pourciau entered and asked Stuart whether she was still a union "member." When Stuart said, "[N]o," Pourciau asked McDowell, who answered, "[Y]es, that she was." Pourciau then asked McDowell "why she was still a union member." "Because," McDowell told Pourciau, she was "union," her husband was "union," and that her husband felt she should be a union member. Pourciau then asked McDowell whether she was working without a contract. "No," replied McDowell. Pourciau advised McDowell that 8 No complaint allegation covers this interrogation. The 10(b)'s 6- month limitations period reaches back only to September 24, 1993, a date 6 months before the March 24, 1994 service of the change in this case. there was no contract, the CBA had expired, and that it did the employees no good to be in the Union because there was no contract. (Tr. 2:366-367.) Indeed, as McDowell describes, in about July 1993 Pourciau solicited McDowell and Stuart to drop their membership in the Union because Louisiana is a right-to-work state. They told him they wanted union protection, but would check with their husbands. (Tr. 2:346, 369-372.) McDowell also begins to testimonially describe something else Pourciau said, but she appears to shift to information imparted by Ruh concerning her conversation with Pourciau, and their exchange about majority standing. (Tr. 2:367.) I do not rely on this portion as it appears garbled. Although confirming the event McDowell reports, secretary Merlis Stuart is unsure about the date, placing it (Tr. 2:305) "quite a while" (which she defines as perhaps 2 months, although she is not at all sure, Tr. 2:305) before Robertson-Jordan's departure. Moreover, Stuart recalls that this incident, one of perhaps 10 discussions with Pourciau about the Union, occurred in his office. (Tr. 2:303.) Thus, on cross-examination she testified that the conversation could have occurred in May 1993. (Tr. 2:327.) Asked what was said, Stuart testified (Tr. 2:308), "I know Gene Pourciau asked if we were still members of Local 383. I told him I was not. That is really all I remember." Stuart testified that she did not recall much about the incident because it simply was not a "big deal" to her; it was not that "relevant" to her. (Tr. 2:306, 309.) After having her memory refreshed by reading a portion of her pretrial affidavit (Tr. 2:312-314), Stuart recalled that Pourciau asked why she was no longer a union member, and she replied that the Union was constantly increasing its membership dues. To her question of whether she had to be a union member to work at the Fund, Pourciau answered, "[N]o." (Tr. 2:315.) In view of McDowell's specific and persuasive recall of the details, I credit her account. In so doing, I also find that the incident Stuart described is the same one that McDowell more reliably described, and that the incident occurred on January 11, 1994. Stuart also vaguely described what appears to have been an earlier conversation, when she still was a union member, in which Pourciau assertedly asked why she wanted to be a union member. Stuart was unable to give any time frame or other details. (Tr. 2:315-319.) The General Counsel seeks to show animus from this apparently earlier event. In view of Stuart's vague recall of this undated, and apparently separate, incident, I attach no weight to Stuart's limited description of this separate incident. Claims processor Nancy Jeansonne testified that in January 1994, while she and Robertson-Jordan were at their desks in the claims processing room, Pourciau approached Jeansonne and asked if she was a union member. Jeansonne said yes. At that, Pourciau went over to Robertson-Jordan, but Robertson-Jordan was busy on the telephone. Jeansonne then asked Pourciau whether he wanted to know if Robertson-Jordan was a union member. When Pourciau replied, "[Y]es," Jeansonne told him that, as far as she knew, Robertson-Jordan was a union member. (Tr. 1:236-237, 259.) Although Jeansonne cannot recall the date, she remembers that, on one occasion in the claims room, Pourciau stated that the clerical employees did not have a contract. (Tr. 1:260.) This testimony is some support for McDowell's description PLUMBERS LOCAL 198 of Pourciau's statements in Stuart's office on January 11, 1994. 2. Discussion As Pourciau was not recalled during Respondent's case-inchief, he does not specifically address the testimony of McDowell, Stuart, and Jeansonne. Crediting the accounts of the three women, as I have described, I find that Pourciau's interrogation reasonably tended to be coercive, especially his interrogation of McDowell and Stuart, because in that interrogation he not only asked whether but also why. And these questions were followed by his statements about there being no CBA and that it did them no good to be in the Union because there was no contract. Of the four women, only Robertson-Jordan wore any union insignia. Nancy Jeansonne quit wearing her union pin in May 1993 because, in her view, a union member (apparently Sandra Stroughter) was discriminated against by not receiving a 2-week notice when laid off in May 1993. (Tr. 1:238-240.) Marie McDowell, who obtained her union pins in about 1993, never wore them to work for fear that her wearing of them would engender some adverse reaction from management. (Tr. 2:354.) In short, other than Robertson-Jordan, none of the others was an open supporter of the Union during the relevant time. The demeanor of the women witnesses was superior to that of Administrator Pourciau. It also is clear that Pourciau had a reason to interrogate. Thus, as Pourciau had stopped the dues checkoff in April 1993, he no longer knew who was a member of the Union. If a majority no longer were members, as Pourciau apparently suspected, Pourciau apparently thought that the Fund could refuse to negotiate a renewal contract. In any event, I credit the description of the General Counsel's three female witnesses, and I disbelieve the limited contrary testimony by Pourciau. Finding that Pourciau's January 11, 1994 interrogation would reasonably have tended to be coercive, I also find, as alleged in complaint paragraphs 7 and 10, that Respondent Fund, by Pourciau's coercive interrogation of January 11, 1994, violated Section 8(a)(1) of the Act. For lack of supporting evidence, I shall dismiss complaint paragraph 7 respecting an alleged interrogation about December 1993. B. Leslie Robertson-Jordan Laid Off January 17, 1994 1. The Government's prima facie case a. Introduction Leslie Robertson-Jordan worked some 18 years for Respondent Fund-from February 1976 to her layoff in January 1994. (Tr. 2:397.) For most of her tenure at the Fund, Robertson-Jordan was the claims manager. In this capacity, she had supervised both Jeansonne and McDowell. In early May 1993, Pourciau eliminated Robertson-Jordan's title and reduced her pay (plus transferred some of her work) on the stated basis that he did not want to use titles and that he wanted everyone to earn the same wage rate. (Tr. 2:412- 417.) Although Union President Ruh submitted a May 7, 1993 grievance letter (G.C. Exh. 10), the Fund, by Attorney Robein's letter of May 12 (G.C. Exh. 13), denied the grievance on the basis the old contract provisions were unenforceable. "Nevertheless," Robein stated, "Pourciau would be available to discuss the matter." If anything developed from that, it is not shown in the record. b. Knowledge A member of OPEIU Local 383 since 1979, Robertson- Jordan has held several positions in the Union. She has been vice president since 1985, and was the Union's steward until about 6 months before her January 1994 layoff. (Tr. 1:401- 402.) Alone among the clericals, Robertson-Jordan wore her union pins during the relevant time. Until her layoff, she typed "OPEIU Local 383" on her claims worksheets. (Tr. 2:407-408.) The other employees knew Robertson-Jordan as being the functional steward at all times. Although Robertson-Jordan had little direct contact with Pourciau on union matters, Pourciau admittedly delivered the Fund's contract proposal (G.C. Exh. 7) to "union steward" Robertson-Jordan on May 29, 1992, for delivery to Union President Ruh (Tr. 1:92; 2:444), and when Pourciau laid off Robertson-Jordan on January 17, 1994, he understood that she was the Union's steward and an officer in the Union. (Tr. 1:107-108.) BOT Trustee LeBlanc concedes that as of 1992 he became aware of Robertson-Jordan's status as the Union's steward. (Tr. 2:511-515.) Respondent's position appears to be that the Fund was unaware of the full extent of Robertson-Jordan's behind-thescenes union activities. That much, no doubt, is true. Nevertheless, even though Robertson-Jordan was not an "in-yourface" steward, it is clear, and I find, that the Fund viewed Robertson-Jordan as the Union's representative on the Fund office staff at all relevant times. c. Animus Earlier I cited the evidence showing that, about July 1993, Administrator Pourciau solicited employees to drop their membership in Local 383, telling them that Louisiana is a right-to-work state. In about November or December 1993, Merlis Stuart called out to Marie McDowell, who was in the computer room, that McDowell had a call from Local 383. Pourciau went to the computer room and stood by McDowell so that McDowell, telling the Local 383 caller that she could not talk, terminated the call. When Pourciau then asked if that was Local 383 on the telephone, McDowell said, "[Y]es." Pourciau the turned and left. McDowell credibly testified that this monitoring by Pourciau was unusual. (Tr. 2:362-365.) On January 11, 1994, as I have summarized, the credited evidence shows that Administrator Pourciau unlawfully interrogated employees. That coercive interrogation included statements by Pourciau that the employees were working without a contract and that, therefore, it did them no good to be a member of OPEIU Local 383. The General Counsel points to other incidents, including the May 1993 demotion of Robertson-Jordan. The record is not sufficiently developed so as to show animus respecting Robertson-Jordan's demotion. However, the demotion does call to mind the lyrics from Dolly Parton's 1980 song "9 to 5," made popular by singer Parton and by a motion picture of the same name. Thus, from the second chorus: Nine to five for service and devotion! You would think that I would deserve a fair promotion; DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Want to move ahead, but the boss won't seem to let me. Sometimes I swear that man is out to get me. Pete Seeger and Bob Reiser, "Carry It On!" (1985, First Fireside Edition, 1986) at 218, 219. Another item, I find, does show animus. This has to do with Pourciau's telling employees, on January 19, 1994, 2 days after Robertson-Jordan's departure, not to type "OPEIU Local 383" on documents "because we may get in trouble." (Tr. 1:242, 259.) Although questions on cross-examination (Tr. 1:259) suggest that Pourciau may have been concerned about trademark laws [that is, if no contract with Local 383, then no right to use the Union label, as the old contract clearly warns, G.C. Exh. 6 at 3], Pourciau gave no such explanation, or any explanation, to the employees. Nancy Jeansonne testified that, in view of Pourciau's confrontational efforts to persuade the employees to drop out of the Union, and because of the nature of the layoffs in the office, she felt intimidated by Pourciau's "trouble" remark. (Tr. 1:242, 259.) Jeansonne means, I find, that she understood Administrator Pourciau to be threatening unspecified reprisals for any clerical typing the union label on a Fund document. I find that, in the circumstances of this record, Jeansonne's conclusion was a reasonable interpretation of Administrator Pourciau's "trouble" statement. Even if Pourciau also was thinking of the contractual restriction on use of the Union label, I find that Pourciau deliberately took advantage of the situation in an attempt to frighten Jeansonne into dropping her membership in the Union. In short, the record has ample evidence that the Fund not only wanted to get rid of Local 383, but also wanted the clericals to drop their membership in Local 383. Animus is shown generally. With one exception, other than the General Counsel's contention respecting Robertson-Jordan's May 1993 demotion, there is no evidence that Pourciau harassed Robertson-Jordan or otherwise made her the focus of the Fund's animus. The one exception is the manner in which Administrator Pourciau notified Robertson-Jordan of her layoff-no advance notice. As stated earlier, I do not credit Pourciau in the reason he gave for not giving her the standard notice (to prevent the person given a written 2-week notice from immediately taking accumulated sick leave). I find that Pourciau's reason for no advance notice to Robertson- Jordan was to punish Robertson-Jordan for her status as the Union's office representative, and to signal the other that Pourciau had run out of patience in suggesting to them to drop their membership in Local 383. d. Timing/causation In the absence of evidence demonstrating that the Fund was directing its animus at Robertson-Jordan, what is the triggering event which, prima facie, shows that the Fund was motivated to get rid of Robertson-Jordan because of her union status? The General Counsel points to the Union's firestorm of activity in early January 1994, with letters to members of the BOT, and Ruh's written demand of January 10 that Pourciau call her on Friday, January 14, the day after the BOT's meeting, regarding a date for negotiations for a renewal contract. [The evidence demonstrates that Local 383 still enjoyed a contractual relationship with the Fund, and, for the purposes of this case, I so find.] In short, Ruh was forcing the issue, and the Fund had to make a decision. The decision the Fund made was to lay off Robertson-Jordan, out of the line of seniority. That exception to the Fund's past practice for layoffs (since early 1993; there is no evidence of any pre-1993 layoffs) is an indicium of unlawful motivation. e. Conclusions Based on the foregoing, and the entire record, I conclude that the Government established, prima facie, that a moving reason for the Fund's January 1994 layoff of Leslie Robertson-Jordan was her status as the Union's in-house representative at the Fund's office. The burden then shifts to the Fund to demonstrate, as an affirmative defense, that it would have laid off Robertson-Jordan even had there been no union on the scene. I turn now to Respondent's affirmative defense. 2. Respondent Fund's affirmative defense a. Economic necessity for a layoff As summarized earlier, by January 1993 the Fund had learned that it was fast approaching insolvency. It, therefore, began a series of steps to restore solvency. Although LeBlanc, in Local 198's October 1993 newsletter anticipated a further reduction in force (R. Exh. 6 at 3), the General Counsel, on brief (Br. 13-16), argues that the economic need had passed and was seized on as a pretext to get rid of Robertson-Jordan because of her activities on behalf of the Union. The first question here is whether the General Counsel is estopped from advancing this argument. As I noted earlier in my statement of the case, at trial the General Counsel expressed the Government's position as not contesting the fact that the Fund had an economic need to lay off one more person in January 1994. (Tr. 1:183, 217.) Nevertheless, with no objection from Respondent, the General Counsel thereafter adduced evidence demonstrating that the Fund's economic crisis had passed and that, in fact, its financial picture was improving. The question them becomes whether Respondent, by not objecting, waived any right it had to complain. Nancy Jeansonne credibly testified that the claims workload has not dropped since October 1993. (Tr. 1:266-267.) Indeed, Jeansonne credibly observes that she is doing the work of two claims processors. (Tr. 1:273.) In May or June 1995 Jeansonne even told Administrator Pourciau that she had a lot of work-and her work is in plain view-but that Pourciau made no comment. (Tr. 1:273-275, 278.) While Jeansonne remains social friends with Robertson-Jordan, Jeansonne credibly testified that she would not lie for Robertson-Jordan. (Tr. 1:251, 265, 277.) Based on her observation of the daily mail, Marie McDowell testified, there had been no change in the workload as of Robertson-Jordan's layoff. (Tr. 2:376-377.) I do not credit Pourciau's subjective assessment that there was sufficient work for only one claims processor (Tr. 1:77) and (Tr. 1:78) that he no longer needed Robertson-Jordan. Aside from Pourciau's unfavorable demeanor, I note that the Fund offered no documentary evidence to support its contention of reduced claims by January 1994. As the Fund obviously has such data, I draw an adverse inference from its failure to produce it. For the same reasons, I do not credit LeBlanc's PLUMBERS LOCAL 198 subjective assessment that another claims processor should be laid off. Actually, as the parties stipulated (Tr. 2:539-540), the BOT's minutes for its meeting of January 13, 1994, reflect that "[t]he Health & Welfare Fund is 'doing better' but still needs improvement." In short, the solvency crisis had passed. Because Respondent never objected to any of this evidence, I find that it waived any right it may have had to complain that it was misled by the earlier expressed position of the Government. Thus, the General Counsel proceeded to challenge the validity of Respondent's economic defense, and the parties fully litigated the issue. I so find. Having found that the economic defense issue was fully litigated, I now find, as the foregoing discussion indicates, that, as of January 17, 1994, Respondent Fund's financial picture was brighter, the workload was stable, and there was no economic need to lay off a claims processor. With this economic trend, in time the Fund would be in good shape. Thus, finding Respondent's defense of economic necessity is without merit, I also find that the Fund seized on economic necessity as a pretext to rid itself of the Union's representative on the Fund's office staff. b. Selection of Robertson-Jordan Although the parties also litigated the secondary question of Respondent's motivation in selecting Robertson-Jordan for layoff rather than, for example, Nancy Jeansonne, that issue is moot in view of my finding that the need for a layoff was a pretext to get rid of Robertson-Jordan because of her union status. Were I to reach the selection issue, however, I would find the selection of Robertson-Jordan as unlawfully tainted. In finding pretext, I credit the General Counsel's employee witnesses, and I disbelieve the management witnesses, Pourciau and LeBlanc. 3. Overall conclusions To summarize, the Government made a very strong showing, prima facie, that a moving reason for Robertson-Jordan's January 1994 layoff was her union activities. The Fund failed to discharge its affirmative-defense burden of demonstrating that it would have laid off Robertson-Jordan even had there been no union on the scene. In short, I have found that the Fund, using economic necessity as a pretext (a pretext because there was no economic necessity), laid off Leslie Robertson-Jordan in an effort to crush the support that the few remaining members of OPEIU Local 383 held for their Union. Despite their fears of intimidation, however, the women held strong, resisted intimidation's power, and, by their own solidarity, enabled the Government to prove the unlawfulness of the January 17 (effective January 19), 1994 layoff of Leslie Robertson-Jordan.9 I find, as alleged, that Respondent Fund violated Section 8(a)(3) of the Act when it laid off Robertson-Jordan. I shall order the Fund to offer her reinstatement and to make her whole, with interest. CONCLUSIONS OF LAW 1. Respondent Fund violated Section 8(a)(1) of the Act when Administrator Gene Pourciau coercively interrogated employees on January 11, 1994. 2. Respondent Fund violated Section 8(a)(3) and (1) of the Act by laying off Leslie Robertson-Jordan on January 17 (effective January 19), 1994. 3. The unfair labor practices found affect commerce within the meaning of 29 U.S.C. §§ 152(6) and (7). REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.] 9I am reminded of the last lines of the second verse of "Solidarity Forever:" We can break their haughty power, gain our freedom when we learn That the union makes us strong. Edith Fowke and Joe Glazer, Songs of Work and Protest (1973) at 12-13. PLUMBERS LOCAL 198 subjective assessment that another claims processor should be laid off. Actually, as the parties stipulated (Tr. 2:539-540), the BOT's minutes for its meeting of January 13, 1994, reflect that "[t]he Health & Welfare Fund is 'doing better' but still needs improvement." In short, the solvency crisis had passed. Because Respondent never objected to any of this evidence, I find that it waived any right it may have had to complain that it was misled by the earlier expressed position of the Government. Thus, the General Counsel proceeded to challenge the validity of Respondent's economic defense, and the parties fully litigated the issue. I so find. Having found that the economic defense issue was fully litigated, I now find, as the foregoing discussion indicates, that, as of January 17, 1994, Respondent Fund's financial picture was brighter, the workload was stable, and there was no economic need to lay off a claims processor. With this economic trend, in time the Fund would be in good shape. Thus, finding Respondent's defense of economic necessity is without merit, I also find that the Fund seized on economic necessity as a pretext to rid itself of the Union's representative on the Fund's office staff. b. Selection of Robertson-Jordan Although the parties also litigated the secondary question of Respondent's motivation in selecting Robertson-Jordan for layoff rather than, for example, Nancy Jeansonne, that issue is moot in view of my finding that the need for a layoff was a pretext to get rid of Robertson-Jordan because of her union status. Were I to reach the selection issue, however, I would find the selection of Robertson-Jordan as unlawfully tainted. In finding pretext, I credit the General Counsel's employee witnesses, and I disbelieve the management witnesses, Pourciau and LeBlanc. 3. Overall conclusions To summarize, the Government made a very strong showing, prima facie, that a moving reason for Robertson-Jordan's January 1994 layoff was her union activities. The Fund failed to discharge its affirmative-defense burden of demonstrating that it would have laid off Robertson-Jordan even had there been no union on the scene. In short, I have found that the Fund, using economic necessity as a pretext (a pretext because there was no economic necessity), laid off Leslie Robertson-Jordan in an effort to crush the support that the few remaining members of OPEIU Local 383 held for their Union. Despite their fears of intimidation, however, the women held strong, resisted intimidation's power, and, by their own solidarity, enabled the Government to prove the unlawfulness of the January 17 (effective January 19), 1994 layoff of Leslie Robertson-Jordan.9 I find, as alleged, that Respondent Fund violated Section 8(a)(3) of the Act when it laid off Robertson-Jordan. I shall order the Fund to offer her reinstatement and to make her whole, with interest. CONCLUSIONS OF LAW 1. Respondent Fund violated Section 8(a)(1) of the Act when Administrator Gene Pourciau coercively interrogated employees on January 11, 1994. 2. Respondent Fund violated Section 8(a)(3) and (1) of the Act by laying off Leslie Robertson-Jordan on January 17 (effective January 19), 1994. 3. The unfair labor practices found affect commerce within the meaning of 29 U.S.C. §§ 152(6) and (7). REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. The Respondent having discriminatorily discharged an employee, it must offer her reinstatement and make her whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of reinstatement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.] 9I am reminded of the last lines of the second verse of "Solidarity Forever:" We can break their haughty power, gain our freedom when we learn That the union makes us strong. Edith Fowke and Joe Glazer, Songs of Work and Protest (1973) at 12-13.