Iplli, Inc.

463 321 NLRB No. 65 IPLLI, INC. 1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an admin- istrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incor- rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. In affirming the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by discharging John Martyn, we do not rely on the judge’s irrelevant discussion in sec. II of his decision of the goals of the Union’s salting program. We also do not rely on fn. 2 and App. A, which we strike because they are not part of the record. In addition to the cases cited by the judge, we note that the Board’s position with respect to the employment status of employee participants in the Union’s salting program is also set forth in Town & Country Electric, 309 NLRB 1250 (1992), enf. denied 34 F.3d 625 (8th Cir. 1994), enfd. 116 S.Ct. 450 (1995). 2 We shall modify the judge’s recommended Order in accordance with our decision in Indian Hills Care Center, 321 NLRB 144 (1996). 3 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.’’ Iplli, Inc. and Local 25, International Brotherhood of Electrical Workers, AFL–CIO. Cases 29– CA–18328 and 29–CA–18510 June 13, 1996 DECISION AND ORDER BY CHAIRMAN GOULD AND MEMBERS BROWNING AND COHEN On July 7, 1995, Administrative Law Judge Ray- mond P. Green issued the attached decision. The Re- spondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,1 and con- clusions and to adopt the recommended Order as modi- fied and set forth in full below.2 ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge as modified and set forth in full below and orders that the Respondent, Iplli, Inc., Bohemia, New York, its offi- cers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for joining or supporting Local 25, International Brotherhood of Electrical Workers, AFL– CIO, or any other union. (b) Threatening employees with plant closure or with the loss of jobs because they support or join Local 25, International Brotherhood of Electrical Workers, AFL–CIO. (c) In any like or related manner interfering with, re- straining, 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 John Martyn full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make John Martyn whole for any loss of earn- ings and other benefits suffered as a result of the dis- crimination against him, in the manner set forth in the remedy section of the decision. (c) Within 14 days from the date of this Order, re- move from its files any reference to the unlawful dis- charge, and within 3 days thereafter notify the em- ployee in writing that this has been done and that the discharge will not be used against him 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 pay- ment 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 offices and meeting halls copies of the attached notice marked ‘‘Appendix B.’’3 Copies of the notice, on forms provided by the Regional Director for Region 29, after being signed by the Respondent’s authorized representative, 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 proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own ex- pense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since August 31, 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. IT IS FURTHER ORDERED that the complaint is dis- missed insofar as it alleges violations of the Act not specifically found. 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX B 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 or- dered 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 protec- tion To choose not to engage in any of these pro- tected concerted activities. WE WILL NOT discharge or otherwise discriminate against any of you for joining or supporting Local 25, International Brotherhood of Electrical Workers, AFL– CIO, or any other union. WE WILL NOT threaten employees with plant closure or with the loss of jobs because they support or join Local 25, International Brotherhood of Electrical Workers, AFL–CIO. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, within 14 days from the date of the Board’s Order, offer John Martyn full reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make John Martyn whole for any loss of earnings and other benefits resulting from his dis- charge, 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 discharge of John Martyn, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discharge will not be used against him in any way. IPLLI, INC. Diane Lee, Esq., for the General Counsel. Cynthia Licul, Esq., for the Respondent. DECISION STATEMENT OF THE CASE RAYMOND P. GREEN, Administrative Law Judge. This case was tried in Brooklyn, New York, on May 5 and 22, 1995. The charge in Case 29–CA–18328 was filed on June 17, 1994, and the charge in Case 29–CA–18510 was filed on September 6, 1994. A consolidated complaint was issued by the Regional Director of Region 29 on October 25, 1994. In substance, the complaint, as amended at the hearing, alleged: 1. That on May 11, 1994, the Respondent by its owner, Brian McAuliff (a) threatened to close the plant; (b) told em- ployees that the Company would lose work if the Union suc- ceeded in representing its employees; and (c) told employees that it would stop bidding for jobs if the employees joined or supported the Union. 2. That on May 19, 1994, the Respondent, by Brian McAuliff, told employees that if the Union succeeded in its attempt to represent its employees, their jobs would not be guaranteed. 3. That on May 19, 1994, the Respondent by its foreman, Lani Bohne, threatened employees with plant closure if the Union succeeded in its attempt to represent them. 4. That on May 20, 1994, the Respondent transferred John Martyn from one jobsite to another for discriminatory rea- sons. 5. That on June 1 and 2, 1994, the Respondent refused to assign overtime work to Martyn for discriminatory reasons. 6. That on June 10, 1994, the Respondent discharged Mar- tin because of his membership and activities on behalf of the Union. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed, I make the following FINDINGS OF FACT I. JURISDICTION It is admitted that the Employer is a New York corpora- tion engaged in the business of providing electrical contract- ing services in the building and construction industry. It also is admitted that during the past year it performed services valued in excess of $50,000 for enterprises located in the State of New York, which in turn, meet the Board’s direct inflow or outflow standard for asserting jurisdiction. Based on the above, I find that the Employer meets the Board’s in- direct outflow standard for asserting jurisdiction and that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. The Respondent denied that Local 25, IBEW was a labor organization within the meaning of the Act. Andrew Bub, who is the financial secretary of Local 25, testified that the Union is an organization which represents employees for the purpose of collective bargaining. He testified that employees participate in the affairs of the Union by way of elections etc. Offered into evidence was the constitution of the Inter- national Brotherhood of Electrical Workers and the bylaws of Local 25. Also placed into evidence was a current collective- bargaining agreement between Local 25 and the Long Island Chapter, National Electrical Contractors Association, Inc. and a certification by the National Labor Relations Board (the Board), certifying Local 25 as the exclusive collective-bar- gaining representative of the employees of Mr. Electric Serv- ice Co., Inc. Based on the above, I conclude that Local 25, IBEW is a labor organization within the meaning of Section 2(5) of the Act. Alto Plastics Mfg. Corp., 136 NLRB 850, 851–852 (1962). 465 IPLLI, INC. 1 In the brief filed on behalf of Local 25 by Michael D. Lucas, the executive assistant to the IBEW’s international president, he indi- cates that it is likely that Local 25 has passed such a resolution in accordance with the suggested format of the International Union. II. ALLEGED UNFAIR LABOR PRACTICES John Martyn obtained his job by visiting the jobsite and speaking first with the general contractor who referred him to Brian McAuliff, the owner of Iplli. In his interview with McAuliff, Martyn said that he had just arrived from Texas where he had worked as an electrician for an electrical con- tractor called Ocean Electrical Construction Inc. Martyn was hired and unbeknownst to McAuliff, Martyn’s description of his time employed at Ocean was false. Martyn states that during the interview, McAuliff said that there were union shops and nonunion shops and that there was no way that he was going to become a union shop. Needless to say, Martyn did not disclose that he was a member of Local 25. Martyn explained that he sought the job at Iplli under the Union’s salting program, where as a member of Local 25, he agreed to try to obtain employment at nonunion contractors and if employed, attempt to organize the employees of the company. He states that he falsely listed his employment at Ocean because he felt that if he listed his most recent em- ployers, this would tip off the Company that he was a mem- ber of Local 25 and preclude him from being hired. It should be noted that the International Brotherhood of Electrical Workers has had for some years a nationwide pro- gram called the ‘‘Salting Program,’’ which was designed as a response to the increasing use of nonunion contractors on construction projects. The IBEW salting program was de- scribed to me in four previous cases, one of which is still pending decision, and the other three being Sullivan Electric Company, JD(NY)–04–95, Consolidated Electrical Service Inc., JD(NY)–11–95 (neither of which were appealed to the Board), and Belfance Electric, Inc., JD(NY)–55–95, which issued on June 22, 1995. Bub, the Union’s financial sec- retary, testified that Local 25 participates in this program and acknowledged use of the IBEW’s salting manual. I am there- fore taking official notice of it and including excerpts from that document as Appendix A. However, unlike other IBEW locals, it is not clear in this particular case whether Local 25 had passed a resolution requiring its members, if employed under the salting program, to leave their employers imme- diately on union notification.1 In Sullivan Electric Company and Consolidated Electrical Service Inc., I stated that I thought that the goals of the salt- ing program included the following goals which could be separate or overlapping depending on local circumstance. 1. To put union members on a jobsite so as to enable the Union to organize the Company’s employees in order to gain recognition either voluntarily or through a Board election. 2. To get union people on the job and create enough trouble by way of strikes, lawsuits, unfair labor practice charges and general tumult, so that the nonunion con- tractor walks away from the job. 3. If number 2 does not work, to create enough prob- lems for the employer by way of unfair labor practice charges, Davis Bacon, OSHA, or legal allegations re- quiring legal services so that even if the employer does not walk away from the job, he will be reluctant to bid for similar work in the local area ever again. In the present case, the evidence indicates that Local 25’s goal in having Martyn obtain employment at Iplli was to have him try to organize the employees of the Company while he worked there and ultimately to attempt to gain union recognition. Martyn was hired and began to work on December 6, 1993. He initially was paid $14.50 but eventually his wages were raised to $16 per hour which is the same rate of pay as that of Lani Bohne, whom the General Counsel claims is a supervisor. Initially, Martyn was assigned to work at a job- site at 115 Orville Drive, Bohemia, New York, and thereafter on December 23, 1993, was transferred to another site at 105 Orville Drive where he spent most of his time until trans- ferred on May 24, 1994. It should be noted that the Company is a very small elec- trical contractor, employing about 8 to 10 employees whom it tries to shift from job to job as needed. Of this group, there were four to five people who could be categorized as journeymen electricians and about four people who would be categorized as helpers or apprentices. As explained by McAuliff, his Company being small, he bids for small jobs and competes only against other nonunion electrical contrac- tors. McAuliff testified that because of the small size of his work force, he is the only person who supervises employees, albeit the first electrician assigned to a new job will be ‘‘in charge’’ of that job and act as a kind of foreman. There is no dispute that Martyn did his job and did it well without complaint by either McAuliff or Iplli’s customers. It also appears that Martyn did not begin to engage in any union activity until May 1994. Martyn testified that on May 11, 1994, during a conversa- tion he had with McAuliff about a raise, he mentioned that he had been contacted by a union representative about orga- nizing. He states that McAuliff responded by stating that he would close the shop before going union. He also states that McAuliff said that if the men got together and formed a union he would no longer bid for work and that his cus- tomer, Nature’s Bounty, would take the work away from Iplli and do the work itself. Martyn testified that after May 11, 1994, he spoke to the other employees about the Union and invited them to meet with Bub on May 18 after work. When no one showed up, Bub and Martyn figured that Martyn’s cover had been blown and they decided to fax a letter to McAuliff, announcing that Martyn was there to organize for the Union. Martyn states that during a meeting on May 19, 1994, McAuliff announced, after discussing OSHA matters, that Martyn was going to be trying to organize the employees into the IBEW and that although he was not happy, this was Martyn’s right. He states that McAuliff said that Iplli’s cus- tomers were nonunion and that if the employees chose to be represented, it would contaminate a union free environment. According to Martyn, McAuliff said that Iplli bid against other nonunion contractors, and that these jobs were not guaranteed because financially, a union shop could not com- pete against a nonunion shop. Martyn testified that McAuliff stated that if the job went union, ‘‘you’re not guaranteed these jobs,’’ and that he pulled out and read from a news- paper article describing an IBEW member who had been out 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD of work since 1991. Martyn further testified that after the meeting, he spoke to McAuliff and told him that he intended to do a good job at work but that he also intended to orga- nize the other employees during his off hours. He states that McAuliff repeated that he was not happy. According to Martyn, on May 20, 1994, he had a con- versation with Lani Bohne who said that McAuliff would have to close down the shop because he could not financially afford to go union. McAuliff testified that at the December 3 job interview, Martyn asked if Iplli was a union shop and that he told Martyn that it was not and that he was not interested in be- coming a union shop because his was a small Company. McAuliff states that on May 19, 1994 (and on several other occasions as well), he told employees that his was a small shop primarily engaged in renovation work and that in his opinion, he would have a hard time surviving as a union company if he had to bid against nonunion contractors be- cause his labor rates would be almost double what theirs were. He states that this was a stock answer he gave to em- ployees about what would happen if his Company went union. He also states that he simply was expressing his per- sonal opinion. Lani Bohne, who testified in this case, did not deny the remarks that were attributed to him by Martyn on May 20. The Company argues, however, that Bohne is nothing more than an electrician, who at best, has been designated from time to time as a lead person. As noted above, Bohne’s wage rate was no higher than Martyn’s and there was little or no evidence that he had any of the authorities or powers which are enumerated in Section 2(11) of the Act. As noted above, on May 20, 1994, Martyn was transferred to a new job for a new customer. Although, the complaint asserts that this transfer was discriminatorily motivated, the evidence does not support such an allegation. In essence, the job at which Martyn had been assigned, was almost com- pleted. Instead of keeping Martyn at this jobsite to work by himself, the Company put Bohne there to do the ‘‘clean up’’ work and assigned most of its people, including Martyn, to work for the new customer at the new job that was just be- ginning. This new job was less than a mile away from the old job and Martyn did not suffer any diminution in his wages or benefits. And if the Company wanted to keep Martyn from engaging in union activity, it would have made far more sense to keep him isolated at the old job and not move him to the new job where the other employees were congregated. Martyn claims that on June 1, 1994, he was told by Lani Bohne that he could not work overtime that day but that when he went home, he saw that other employees remained at work. He did, however, work overtime on Saturday, June 4. The Company asserts that it did not deny any overtime to Martyn during the week in question and the payroll records tend to support the Company’s view. Thus, during the week ending June 7, 1994, whereas Martyn worked 5.5- overtime hours, two employees worked respectively, 6- and 12-overtime hours and five employees worked 5 or fewer overtime hours. On June 10, 1994, Martyn was fired and was told that the reason for his termination was because he falsified the em- ployment application that he had submitted back on Decem- ber 3, 1993. McAuliff testified that sometime after he received the union fax, he found out from someone, that Martyn did not just come from Texas. He states that he called information in Texas and found that there was no listing for Ocean Elec- trical Construction Inc. and that when he contacted the Texas Secretary of State, he was advised orally (and on June 6, 1994, by fax), that this company had ceased to exist in Feb- ruary 1984. McAuliff states that he decided to discharge Martyn based on the false application because he felt that if he lied there, he could not trust Martyn when he was out in the field doing his work. (For example, the employer basically takes the word of employees as to their hours of work as there is no check in or time clock system.) McAuliff asserted that he similarly discharged another em- ployee, Jamie Temboro, for giving false information on his job application. However, that situation was somewhat dif- ferent, in that Temboro, who apparently had listed on his ap- plication that he had done electrical work for an electrical contractor, admitted during his time of employment at Iplli that he really had not done electrical work there, and this confirmed McAuliff’s observation that Temboro was incom- petent as an electrician. Thus unlike the situation with Temboro, there was no issue as to the ability of Martyn to do the work and there was no reason to believe that he was unqualified for his job. Analysis There is no doubt in my mind that but for Martyn’s union activities, he would have retained his employment at Iplli. Considering the timing of his discharge in relation to his an- nounced intention to try to organize the other employees, this by itself constitutes strong prima facie evidence that the Company was motivated by Martyn’s union activity. More- over, evidence of such motivation is also derived from state- ments made by McAuliff indicating his unhappiness with the fact that Martyn announced his intention to engage in such activity. Cf. Best Plumbing Supply, 310 NLRB 143 (1993). Under Wright Line, 251 NLRB 1083 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982), once the General Counsel has established a prima facie showing of unlawful motivation, the burden is shifted to the respondent to establish that it would have laid off or dis- charged the employee for good cause despite his or her union or protected activities. The Respondent contends that the sole reason it discharged Martyn was because he gave false information on his job ap- plication. This is, in fact, the case as Martyn did so on the (probably correct) assumption that if he listed New York union contractors as his prior employers, he would not have been offered employment at Iplli. In any event, the Respond- ent asserts that the discharge of Martyn was consistent with its prior practice of terminating other people who had fal- sified their job applications; giving the example of Temboro. Nevertheless, that example is not convincing as Temboro’s discharge resulted from the fact that despite his listing of a prior electrical contractor as an employer, he demonstrably was unable to perform the work required of him by Iplli. It seems to me that Temboro more likely was discharged, not because he gave false information on his job application, but rather because he falsely claimed that he could perform work that he could not. 467 IPLLI, INC. 2 For a description of the salting programs of the IBEW and the International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers (IBB), see the Journal of Labor Research Volume XIV, Number 4, Fall 1993 authored by Herbert R. Northrup of The Wharton School, University of Pennsylvania. See also an article by Michael J. Bartlett, Beth C. Wolffe, and Gretchen M. White in the May 1994 Labor Law Journal. ‘‘Sunland Construction Company: Are union organizers necessarily bona fide applicants?’’ 3 The Union’s brief argues correctly that I am bound by the Board’s view of the law and not by the contrary opinion of the Eighth Circuit Court of Appeals. Nevertheless, the Union’s brief dis- cusses the history of its salting program and the reasons that the International has suggested certain language for salting resolutions to be adopted by its locals. The brief also sets forth the Union’s legal theory as to the consequences under the NLRA of its salting resolu- tions and their impact on the relationship between the Union, its members, and any employers who employ such members. Although I found the discussion interesting, I shall leave consideration of this legal issue to a higher authority. 4 Inasmuch as I do not think that the General Counsel has estab- lished that Bohne was a supervisor within the meaning of Sec. 2(11) of the Act, I shall recommend that the allegation concerning state- ments attributed to him, be dismissed. There is an issue as to whether a person who obtains em- ployment under the Union’s salting program, should be con- sidered an employee for purposes of Section 2(3) and/or Sec- tion 8(a)(3) of the Act. Thus, in Town & Country Electric v. NLRB, 34 F.3d 625 (8th Cir. 1994), the court held that employee-members of a union who were sent to apply for work at a nonunion contractor were not employees within the meaning of the Act and therefore could be refused employ- ment. In that case, the court held inter alia that employees who obtained employment under the IBEW’s salting program were not entitled to the protection of the Act, in large meas- ure, because of the union’s enactment of a resolution allow- ing its members to accept employment at a nonunion em- ployer only on condition that they engage in organizing ac- tivity and that they quit their employment immediately on union notification. In that case, the court held that where such a resolution exists, the union’s control over the ‘‘puta- tive’’ employment relationship (which control would exist despite the absence of a collective-bargaining relationship), would be ‘‘inimical to, and inconsistent with, the employer- employee relationship.’’ The Board’s position on this issue is set forth in cases such as Wilmar Electric Service v. NLRB, 968 F.2d 1327 (D.C. Cir. 1992); and Bay Control Services, 315 NLRB 30 (1994). In those cases the Board has held that such employ- ees are entitled to statutory protection and that when dis- charged because they engaged in union activity, they are en- titled to reinstatement and back pay.2 Inasmuch as I am bound by Board precedent, I conclude that the discharge of Martyn violated Section 8(a)(1) and (3) of the Act.3 In addition to the discharge, the complaint alleges that for discriminatory reasons, the Respondent, on May 20, 1994, transferred him from one job to another and that on June 1 and 2, 1994, the Respondent refused to assign him overtime work. I do not think that either of these allegations have merit. With respect to the transfer, the evidence shows that the job he was working on at the time was just about completed and that a new job for a new customer was just beginning. As was the Company’s custom, it put almost all of its small work force at the new job to impress the customer and left the clean up work for Bohne which was his specialty. By the same token, I do not think that the General Coun- sel has established that Martyn was discriminatorily treated vis-a-vis overtime. In essence, the claim is that on June 1 and 2, 1994, Martyn was told that he could not work over- time whereas he saw that other employees remained at the site after he left. Nevertheless, the payroll records show that Martyn did not suffer a loss of overtime during the week in question in comparison to most of the other employees who worked at this particular job site. Thus, during the week end- ing June 7, 1994, Martyn worked 5.5-overtime hours, two employees worked respectively, 6- and 12-overtime hours, and five employees worked 5 or fewer overtime hours. Finally, the complaint alleges that the Respondent by Brian McAuliff and Lani Bohne, made statements to employ- ees that were violative of Section 8(a)(1) of the Act.4 The testimony of Martyn and McAuliff regarding their conversations on May 11 and 19 present an intriguing factual and legal issue. Although their testimony obviously covers the same transaction, their recollections are somewhat dif- ferent. Martyn asserts that McAuliff explicitly stated, among other things, that the Company would close if the Union or- ganized the employees. McAuliff, on the hand, asserts that he simply presented his opinion that unionization would lead to higher costs for his Company; that he would therefore be unable to compete for business against other nonunion con- tractors; that his customers were nonunion contractors who might do the work themselves; and that no one could guaran- tee employees their jobs. In circumstances like this, particularly where the record presents a one-on-one situation, it is often difficult to know if the employee/listener is accurately recalling a statement ac- tually made or is truthfully testifying to his interpretation of remarks, which when heard, are simplified to mean that the employer intends to close the shop. By the same token, one wonders whether the employer in his recollection of what was said, truthfully remembers what, in hindsight, he should have said, rather than what he said in actuality. Compounding the problem of perception and recollection, is the legal issue as to whether certain types of statements constitute illegal threats of closure and/or discharge or sim- ply constitute permissible predictions of economic con- sequences. In the present case, I am inclined to believe that McAuliff’s version more likely represents what he said to Martyn and other employees. That being said, I also am of the opinion that such remarks constituted and were under- stood to be threats of reprisal, even if he did not subjectively intend them to be so. In NLRB v. Gissel Packing Co., 395 U.S. 575, 615 (1969), the Supreme Court stated: [A]n employer is free to communicate to his employees any of his general views about unionism or any of his specific views about a particular union, so long as the communications do not contain a ‘‘threat of reprisal or force or promise of benefit.’’ He may even make a pre- diction as to the precise effects he believes unionization will have on his company. In such a case, however, the 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 5 A similar rationale was used in Crown Cork & Seal Co. v. NLRB, 36 F.3d 1130 (D.C. Cir. 1994), where the court held that cer- tain statements were permissible when made in the context of the company’s actual financial condition and when based on objective considerations. prediction must be carefully phrased on the basis of ob- jective fact to convey an employer’s belief as to de- monstrably probable consequences beyond his control or to the convey a management decision already arrived at to close the plant in case of unionization. If there is any implication that an employer may or may not take action solely on his own initiative for reasons unrelated to economic necessities and known only to him, the statement is no longer a reasonable prediction based on available facts but a threat of retaliation based on mis- representation and coercion, and as such without the protection of the First Amendment. We therefore agree with the court below that ‘‘conveyance of the employ- er’s belief,’’ even though sincere, that unionization will or may result in the closing of the plant is not a state- ment of fact unless, which is most improbable, the eventuality of closing is capable of proof. In delineating the boundary between a lawful prediction and an unlawful threat, the Board in National Micronetics, 277 NLRB 993, 995 (1985), stated: The judge concluded that by equating unionization with unprofitablilty and unprofitablilty with plant relo- cation, the Respondent made illegal threats to close the plants and relocate if the Union won the election. . . . . We agree with the judge’s conclusion that these statements were illegal threats, but only for the follow- ing reasons. As we stated above, an employer may law- fully tell its employees that changed economic condi- tions due to unionization could cause it to move else- where. Thus, where an employer points out specific ef- fects of unionization that might cause it to become un- profitable, such as higher wages or production losses during strikes, it may properly raise the possibility that a loss of jobs could result from unionization. In this case, however, the Respondent did not point to any ob- jective facts that would be likely to change as a result of unionization and cause it to become unprofitable. In- stead, the Respondent merely noted that its Kingston plants were already uncompetitive, when compared to its plants in California and Mexico and to its Japanese suppliers, and stated that it could easily relocate these unprofitable plants if the Union won the election. Fur- thermore, the Respondent made these statements at the end of a long anti-union election campaign during which five of its highest management officials had re- peatedly made explicit threats to close the Kingston plants and relocate the work in California if the Union won the election. Shelby Tissue, 316 NLRB 646 (1995), involved a rep- resentation case, wherein the Board overturned an election because the employer repeatedly implied, without objective foundation, that a vote for the union would inevitably lead to plant closure. The Board also noted that the employer stat- ed that the union represented another employer where the work force had gone down from 1200 to 650 and that the remainder would soon be out of jobs. Finding that the em- ployer had no objective evidence that the union had done anything to cause or to exacerbate problems at the other em- ployer, the Board held that these statements were grounds for setting aside the election. In Dominion Engineered Textiles, 314 NLRB 571 (1994), an employer told employees that the bargaining obligation that would flow from the union’s victory could be ‘‘devastat- ing’’ because the union would be ‘‘a major distraction’’ con- suming the employer’s time and energies that could other- wise be devoted to solving its problems. The Board, with Member Cohen dissenting, held that such statements were grounds for setting aside the election under the rationale of NLRB v. Gissel Packing Co., supra. In dissenting, Member Cohen noted that the employer’s statements pointed out (1) that other companies have faced difficult economic condi- tions; (2) that the union nonetheless took unreasonable bar- gaining positions vis-a-vis those companies; (3) that as a re- sult those companies were forced to close; (4) that the em- ployer also faced difficult economic conditions, (5) that it could be reasonably anticipated that the union’s bargaining posture vis-a-vis the employer would be unchanged; and (6) that if the union took such a bargaining position, the em- ployer might be forced to close. In Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986), enfd. 834 F.2d 816 (9th Cir. 1987), the Board concluded that certain statements were not violative of the Act. In that case, the employer’s representative spoke of the company’s finan- cial and competitive situation and backed up his statements with undisputed objective economic facts which showed the employer’s poor financial condition. The Board noted: ‘‘The Respondent’s officials clearly created the impression that any decision to close the plant would be based on its profitability and competitive status in the world market. Their predictions of possible closure were not based on reasons unrelated to economic necessities.’’5 In my opinion, McAuliff’s statements stepped over the boundary because they were premised on an underlying as- sumption which may or may not have come about. All of McAuliff’s predictions about being unable to compete or of being frozen out of work by nonunion customers, is premised on his expressed assertion that if the Union successfully or- ganized his employees, this would automatically result in a doubling of his labor costs. Even assuming, that other com- panies having contracts with Local 25 have higher labor costs, it does not follow that if the Union was to obtain bar- gaining rights, it would either demand or be able to obtain through negotiations, a contract which would double (or even substantially increase), Iplli’s labor costs. Therefore, since McAuliff’s predictions were not based on a demonstrable un- derlying premise (that unionization would necessarily result in substantially higher labor costs), those predictions about loss of work, loss of bids and loss of jobs, overstepped, in my opinion, the bounds of permissible speech and constituted threats of reprisals within the meaning of NLRB v. Gissel Packing Co., supra. 469 IPLLI, INC. CONCLUSIONS OF LAW 1. By discharging John Martyn because of his activities on behalf of Local 25, International Brotherhood of Electrical Workers, AFL–CIO, the Company has violated Section 8(a)(1) and (3) of the Act. 2. By threatening employees with plant closure and with the loss of work, the Company, violated Section 8(a)(1) of the Act. 3. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 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 em- ployee, it must offer him reinstatement and make him 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). APPENDIX A The IBEW’s salting manual is entitled; ‘‘Salting As Pro- tected Activity under the National Labor Relations Act.’’ In pertinent part, this booklet states: Placing (salting) union members in nonunion jobs for the purpose of organizing is a tactic which has gained a great deal of popularity and respectability . . . in the building and construction industry. We derived the term from the process of ‘‘salting’’ mines in order to artifi- cially enrich them by placing valuable minerals in some of the working places. The organizing potential in non- union bargaining units is likewise artificially enriched by ‘‘salting’’ valuable craftsmen in some of the work- ing places. . . . . Since ULP charges are good only if guilt can be proven, many unscrupulous nonunion employers are able to avoid the consequences of their unlawful ac- tions. For this reason, I have also taught that law-break- ers can often be stung by using falsified job applica- tions designed to conceal union employment and/or membership until after an initial cadre of salts have been hired. . . . . Regardless of how it may actually be applied in the real world, by proscribing discrimination or reprisals, the law, in theory, protects job applicants who openly avow their union sympathies, background, or member- ship. And in certain situations and circumstances, job applicants are urged to do just that and bring NLRB charges against any employer who violates these pro- scriptions. [After describing a covert operation to place salts with a company by a local Business Manager, Mr. Lucas described the goals attained as]: The addition of several high-priced, non-productive journeymen (attorneys) to . . . payroll; The exposure of [the employer] to substantial back pay and interest liability plus fringe benefit accruals, if any; The exposure of [the employer] to its own employ- ees, its customers, and the community as an alleged labor law violator; The exposure of [the employer] to the publicity and record making aspects of a trial on the issues and a probable conviction; The eventual placement on the payroll and job of a substantial number of Local 934 member-organizers; The education of substantial numbers of tradesmen and Local Unions in some of the myriad ramifications of salting. . . . . It is not uncommon to receive calls from local unions that have covertly placed salts and are suddenly at a loss as to how to proceed. The answer is, first to gather needed information and then, when appropriate, to come out into the open. If the employer is large or is in a hiring mode . . . a time may come when the Local will want to openly send salts to make application, or to submit job applica- tions by cover letter, or even to have applications deliv- ered by a union official. If the employer is small and seldom hires additional craftsmen, a time may come when the Local will want to expose its covert salts by a letter to the employer with a copy to the NLRB. The point is that the covert placement of salts or the enlistment of current employees is often only the initial step in a salting program and is only the beginning of the organizing effort in any event. The employer should be watched closely for the commission of even minor ULPs and evidence, includ- ing affidavits, should be carefully accumulated. . . . A time may come when the Local will want to pull its salts and supporters out on a minority ULP strike to en- courage the hiring of temporary replacements, set the stage for an unconditional offer to return, and for fur- ther actions; (See Union Organization in the Construc- tion Industry, Applying Economic Pressure, Economic and Unfair Labor Practice Strikes, Never Drag Up-Al- ways Strike, Creating the ULP Strike, and ULP Strikes as Harassment; the Orange book). [Recommended Order omitted from publication.]