Carrier Corp.

CARRIER CORP. 1141 Carrier Corporation and Kenneth W. Crosby. Case 28–CA–16727. December 6, 2001 DECISION AND ORDER BY CHAIRMAN HURTGEN AND MEMBERS LIEBMAN AND WALSH On August 10, 2001, Administrative Law Judge Lana H. Parke issued the attached decision. The Charging Party filed exceptions and a supporting brief,1 and the Respondent filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, find- ings,2 and conclusions3 and to adopt the recommended Order. 1 No exceptions were filed to the judge’s findings that the Respon- dent violated Sec. 8(a)(1) by equating protected concerted activity with disloyalty to the Respondent, by making implied threats of reprisals to employee Kenneth Crosby because he engaged in protected concerted activities, and by prohibiting employee Warren Winchester from talk- ing with Crosby about protected concerted activities. In addition, no exceptions were filed to the judge’s dismissal of the allegation that Supervisor Anthony Derfoldi threatened Crosby in violation of Sec. 8(a)(1). 2 The Charging Party has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an adminis- trative law judge’s credibility resolutions unless the clear preponder- ance 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. In addition, some of the Charging Party’s exceptions imply that the judge’s rulings, findings, and conclusions demonstrate bias and preju- dice. On careful examination of the judge’s decision and the entire record, we are satisfied that the Charging Party’s contentions are with- out merit. 3 In adopting the judge’s finding that the Respondent did not violate Sec. 8(a)(1) when it laid off Crosby, we find it unnecessary to pass on the judge’s finding that the General Counsel failed to satisfy his initial burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to establish that Crosby’s protected concerted activities were a motivating factor in the Respondent’s decision to lay him off. Even assuming arguendo that the General Counsel met his threshold burden under Wright Line, we conclude that the Respondent has demonstrated that it would have laid off Crosby even in the absence of such activities. In so concluding, we particularly rely on the judge’s finding that credited testimony estab- lishes a “concrete and lawful reason for selecting Crosby for layoff,” namely his insubordinate refusal at the July 5, 2000 meeting to ac- knowledge the Respondent’s authority to assign work to employees. In addition, we rely on the credited testimony establishing that Crosby had more customer complaints than other employees, which provided the Respondent with a reasonable basis for believing that Crosby’s work performance was worse than that of the other employees. For these reasons, we agree with the judge that the complaint should be dismissed insofar as it alleges that Crosby’s layoff was unlawful. Chairman Hurtgen would adopt the judge’s decision in its entirety, including her finding that the General Counsel failed to establish that Crosby’s protected concerted activities were a motivating factor in the Respondent’s decision to lay him off. ORDER The National Labor Relations Board adopts the rec- ommended Order of the administrative law judge and orders that the Respondent, Carrier Corporation, Las Vegas, Nevada, its officers, agents, successors, and as- signs, shall take the action set forth in the Order. Benjamin W. Green, Esq., for the General Counsel. Ron Klepetar, Esq., of Los Angeles, California, for the Re- spondent. Randy Rumph, of Las Vegas, Nevada, for the Charging Party. DECISION STATEMENT OF THE CASE LANA H. PARKE, Administrative Law Judge. This case was tried in Las Vegas, Nevada, on June 1 and 13, 2001. The charge was filed by Kenneth W. Crosby (Crosby) on September 7, 2000,1 alleging that Carrier Corporation (Respondent) vio- lated Section 8(a)(1) of the Act. The complaint was issued on January 30, 2001, and amended at the hearing. The issues to be addressed are whether Respondent threat- ened employees with unspecified reprisals for engaging in pro- tected concerted activities, threatened employees with dis- charge for refusing to engage in union activity, threatened em- ployees with layoff because of their protected concerted activi- ties and their participation in Board proceedings, and laid off Crosby because he engaged in protected concerted activity and to discourage employees from engaging in protected concerted activity. On the entire record, including my observation of the de- meanor of the witnesses, and after considering the briefs filed by the General Counsel, Respondent, and the Charging Party, I make the following FINDINGS OF FACT I. JURISDICTION Respondent, a corporation, is engaged in the service of heat- ing, ventilation, and air-conditioning components in the Las Vegas area with a facility in Las Vegas, Nevada, where it de- rived gross revenues in excess of $500,000 from the conduct of its business operations in the 12-month period ending Septem- ber 7. Respondent admits and I find that it is an employer en- gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.2 II. ALLEGED UNFAIR LABOR PRACTICES A. Facts From its Las Vegas facility, Respondent primarily services installed industrial air-conditioners, employing service techni- cians (mechanics) who are represented by the United Associa- tion of Journeymen and Apprentices of the Plumbing and Pipe- fitting Industry of the United States and Canada, AFL–CIO, Local 525 (the Union). The air-conditioning systems serviced 1 All dates are in 2000 unless otherwise indicated. 2 Where not otherwise noted, the findings are based on the pleadings, the stipulations of counsel, and/or unchallenged credible evidence. 336 NLRB No. 120 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142 by Respondent fall into two main categories: unitary (used in smaller buildings) and applied (used in large systems of over 100 tons and involving centrifugal chillers.) The union contract describes four technician classifications, including mechanical service journeymen, servicemen, and apprentices. Journeyman technicians primarily perform applied work and receive a much higher pay rate than the servicemen who primarily do unitary work. Servicemen receive 65 to 70 percent of the journeymen rate. At all times relevant, Van Hoppler (Hoppler) was the terri- tory service manager (branch manager) of Respondent, and Anthony (Tony) Derfoldi (Derfoldi) was the service supervisor, both stationed at Respondent’s Las Vegas facility.3 In authority over Hoppler was Kal Hassaneih (Hassaneih), regional man- ager, whose offices were in City of Industry, California. Bruce Burton, corporate manager (Burton) was Hassaneih’s superior. In 2000, Respondent experienced a downturn in production. Hassaneih testified that business decreased dramatically after the first of the year as demonstrated by the Las Vegas office’s monthly financial reports, which he regularly reviewed. The January report showed a plan (expectation) deviation of minus $23,394, in February a plan deviation of minus $119,578, in March a plan deviation of minus $355,813, in April a plan de- viation of minus $276,626, in May a plan deviation of minus $248,506, and in June, a plan deviation of minus $406,060.4 According to Hoppler, in early 2000 Respondent was also try- ing to move its service emphasis from applied work to unitary work. By April, Hassaneih began pushing Hoppler to lay off technicians to cut expenses. Hoppler testified that Hassaneih talked to him many times about the need to reduce labor costs in order to maintain profitability. Hoppler was reluctant to lay off technicians, as it was difficult to get a good technician back after a layoff. Hassaneih said he continued to press Hoppler to lay off technicians throughout 2000 until Hoppler left Respon- dent on December 8. The decision as to whom to lay off was left with Hoppler. Crosby worked as a journeyman technician for Respondent from September 3, 1996, until his layoff on July 10. On May 24 through July 4, he was absent from work on medical leave. At the time of his layoff, he worked on centrifugal chillers (ap- plied) and unitary equipment. In March and April, employees discussed with each other their dissatisfaction with Hoppler’s management style. Crosby drafted a letter dated May 1 (the complaint letter), which read: To Whom It May Concern: This notice is to inform you that the working conditions under which Carrier Employees at the Las Vegas Branch have been working under [sic] have become intolerable. 3 In December, Hoppler resigned to form his own air-conditioning service company, and Derfoldi was promoted to branch manager. 4 Although less significant because Respondent did not expect its branch offices to perform as well as or greater than the preceding year, the monthly reports prior to Crosby’s layoff showed even greater defi- cits there. The January report showed an income decrease of $518,644 from the previous year, in February a decrease of $792,614, in March a decrease of $1,092,088, in April a decrease of $1,098,375, in May a decrease of $1,033,247, and in June a decrease of $1,203,896. This is due to the most part to the territorial manager Van Hoppler’s extreme, abusive and aggressive style of super- vising. Some employees have even received physical threats. We can no longer work under such intimidating manage- ment. It adversely affects the productivity and morale of the employees. We will be happy to present you with all of the facts you need to support this complaint. Crosby showed the letter to Warren Winchester (Winchester) who signed it. Crosby asked Winchester to solicit signatures from other employees. Winchester obtained signatures from employees Jerry Carter (Carter), Ryan Webb (Webb), Ron Haigwood (Haigwood), and Al Williams (Williams). When the letter was returned to Crosby, he signed it and faxed it to corpo- rate headquarters on May 15.5 The complaint letter was routed from Respondent’s corpo- rate office to Hassaneih. Being very concerned about the letter, he and Burton flew to Las Vegas the next day to meet with the technicians. On May 18, Hassaneih and Burton convened a meeting of all service technicians in Respondent’s conference room at about 1 p.m. Hassaneih thanked employees for writing the letter, saying that without it he would not know there was a problem. Burton told employees that the corporate president had received the complaint letter and that Respondent consid- ered it a very serious matter. He said that Respondent would take the proper measures to investigate and rectify problems. Each employee was then invited to discuss which working con- ditions he found intolerable, and Burton asked each employee, in turn, if he had a problem currently with Hoppler. According to Crosby, Winchester responded first and gave examples of problems he had with Hoppler, as did Carter. Winchester testi- fied that he talked about Hoppler’s mood swings. Haigwood and Williams said they had no current problems with Hoppler. Rick Sorenson, lead technician (Sorenson) said he had some problems. Crosby complained that Hoppler sometimes asked employees if they liked their jobs, which employees took as implied threats. He also recounted episodes of Hoppler’s be- havior while intoxicated, including an incident between Hop- pler and Webb. When his turn came, Webb said he did not want to talk about the incident as it had occurred over a year before. Burton and Hassaneih asked whether employees had observed Hoppler drinking on the job, which employees de- nied.6 Crosby also complained that the two technicians who 5 Testimony was presented regarding the discussions of employees prior to the preparation of the complaint letter and the specific conduct of Hoppler that gave rise to employee dissatisfaction. As it is clear that the actions of employees in discussing Hoppler’s management style and drafting and signing the complaint letter constitute concerted protected activity, I find it unnecessary to explicate the discussions or the com- plaints, none of which reflect violations of the Act by Hoppler. 6 Respondent objected to the complaints by employees as hearsay. Counsel for the General Counsel said the statements were not offered for the truth of the assertions as to Hoppler’s conduct. The statements were admitted as evidence of ongoing concerted protected activity. It is unnecessary to the concerted protected nature of the employees’ com- plaints to find that Hoppler was guilty of the accusations, and I make no finding as to Hoppler’s conduct. CARRIER CORP. 1143 had not signed the complaint letter (Jon Madden, shop steward (Madden) and Sorenson) were receiving preferential treatment. According to Madden, Crosby had more to say than any other employee. Madden also testified that Burton and Hassaneih said they had shown the complaint letter (with signatures re- dacted) to Hoppler and discussed its details with him. They told employees he had agreed to take anger management classes. Hassaneih assured employees that no one would be fired because of the complaint letter. Following the meeting, Burton and Hassaneih talked to em- ployees in the shop and in the parking lot. Crosby testified that he formed part of a group including the two corporate officials in the parking lot. Burton said that no employee would be laid off or terminated because of the complaint letter. Crosby said he felt they should terminate Hoppler to avoid likely retaliation. Hassaneih said there would be no retaliation because he would be monitoring all that went on in the office. Hassaneih gave employees his cellular number and encouraged them to call any time they wished. Later that same day, Crosby met alone with Hassaneih in Respondent’s conference room, and Hassaneih asked for more examples of Van Hoppler’s behavior. Crosby’s responses were essentially the same as previously related. Ac- cording to Hassaneih, Crosby wanted to know what was going to be done with Hoppler, arguing that he shouldn’t be working for the Company, but Hassaneih declined to discuss that. Later that day, Crosby, being dissatisfied with the outcome of the meetings, asked for another meeting with Hassaneih. On the following day, May 19, Crosby, along with his wife, Julie (J. Crosby), and Carter, met with Hassaneih at a local fast food restaurant. Crosby told Hassaneih that he was concerned about retaliation from Hoppler for his part in the complaint letter. Hassaneih assured him that no one would be terminated be- cause of it. Hassaneih testified that during his discussions with employ- ees, he mentioned management concerns about the lack of business and why most of them were not working full time. He did not tell the employees that he had recommended a layoff as he did not think that would be the right thing to do. Following the meetings, Hassaneih met several times with Hoppler. He told him the complaint letter accused him of hav- ing an intimidating style; without divulging names, he told him what had been said in meetings with employees, and he di- rected Respondent’s human resources department to arrange for Hoppler’s attendance at management classes. Hassaneih dis- cussed again with Hoppler the need to lay off technicians, warning him he could not lay off or fire anyone because of the complaint letter and instructing Hoppler to let him know once he had decided on a technician for layoff. Thereafter, as instructed by his superiors, beginning shortly after May 18, Hoppler held meetings with each technician (Van Hoppler meeting) to discuss the complaints. Crosby testified that sometime between May 18 and 24 he was called into Hoppler’s office. Hoppler had the complaint letter before him, and he read it to Crosby, adding, “I’m just letting you know that everybody’s going to have to go by the contract now.”7 Madden also testified about the Van Hoppler meeting with Crosby.8 According to Madden, Hoppler explained the purpose of the meeting, referred to the complaint letter, and asked Crosby what working conditions were intolerable. Hoppler said he felt like he was stabbed in the back by the complaint letter being sent to his superiors over his head, that it was a sneaky way of going about it. He said he wished Crosby could have brought it up with him person-to-person and tried to work out problems. Crosby said that he had tried to discuss situa- tions with Hoppler but had never been able satisfactorily to resolve issues with him. Crosby also said that he wished Hop- pler were nicer to him, that he could get more production out of employees if he were more friendly and more personal with employees. He mentioned, as an example, one morning when Hoppler refused to shake his hand. He said that if Hoppler were nicer to the workers they would be more inclined to per- form better for him. Hoppler said: I don’t have to be your friend. I’m your boss. This is [personnel] relations here. Basically I’m here to run the work force, and you’re to do what you’re asked to do in the work performed. So what you’re telling me is if I’m not going to be your friend and shake your hand and say hi to you every time you come in the door, then you’re not going to perform the work that Carrier’s paying you to do? Crosby answered, “That’s exactly what I’m saying.”9 Madden also recounted a Van Hoppler meeting he attended with Winchester. Winchester told Hoppler that he was a hard person to get along with but did not cite specifics. Winchester recalled that he told Hoppler that the intolerable conditions were the way he treated employees, making disparaging jokes, saying demoralizing things, and threatening to fire people on a whim. According to Winchester, Hoppler accused him of just being disgruntled because Hoppler reprimanded him. Although Madden did not attend any other Van Hoppler meetings, Hoppler informed him, as the union steward, that he had met with Webb, Haigwood, and Carter in a group as re- quested by the three employees who had said they did not need the union steward to be present. Hoppler told Madden that the three employees said they did not have any specific problems, 7 Crosby did not mention this meeting on direct examination. On cross-examination, he testified as set forth but was not asked for further explication. 8 Madden placed the meeting on July 5, after Crosby returned from medical leave. However, Madden also testified that he did not remem- ber dates, but he recalled it was a meeting with Hoppler, Crosby, Der- foldi, Sorenson, and himself. Because the subject matter, as recalled by Madden, related solely to the complaint letter, and because Derfoldi credibly testified that he did not attend the July 5 meeting between Hoppler and Crosby, I conclude that Madden has confused the date, and that Crosby’s Van Hoppler meeting occurred in May as Crosby testified. As to whether or what parts of the conversation related by Madden occurred at the July 5 meeting is unclear. 9 Notwithstanding the confusion over its date, Madden’s recall of the conversation was clear and detailed. He appeared forthright and sin- cere. I accept his testimony without finding it necessary to determine which part of it may have occurred in May and which on July 5. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144 that they had felt coerced to sign the letter, feeling they would be singled out if they didn’t. As for Madden, Hoppler called him on his cell phone at work to discuss the complaint letter. Hoppler asked Madden if he had any intolerable conditions he wanted to bring out. Madden told him he hadn’t ever really had a problem with Hoppler that he couldn’t discuss, and he did not feel it necessary to have a meeting. Sometime the first part of June, while Crosby was on medi- cal leave, Respondent changed its service scheduling and work- load and responsibility assignment system so that service tech- nicians were designated as the primary technician for specific customers or work sites. The object of the change was to en- hance productivity by assigning technicians to service equip- ment they were familiar with. On June 21 or 26, Crosby telephoned Derfoldi and informed him that his doctor had released him to return to work. Der- foldi said he didn’t have the work at that time as it was slow and asked Crosby to extend his recovery time. Crosby did so until July 5. On his return from medical leave on July 5, Crosby saw Hoppler in the breakroom. Crosby offered to shake hands, and Hoppler said, “I don’t shake hands with people like you.” Crosby asked, “Can—are you man enough to put these—the problems behind us and try to get along?” Hoppler said, “Not with someone who stabs me in the back.” On that same day, July 5, Crosby met with Derfoldi. There are significant differences among the accounts of Crosby, Hop- pler, and Madden regarding the meeting. Inasmuch as state- ments made in the meeting are germane to the issue of whether Derfoldi bore animus toward Crosby because of his protected activities or threatened him with discharge because he failed to participate in union activities, I have set out the various ac- counts in detail. Crosby’s account: when he returned from medical leave he went into Derfoldi’s office. Derfoldi called in Madden and Sorenson, and then informed Crosby that he would have to go by the [Union] contract with regard to his working hours. Crosby said he did not have a problem with the working hours, that he was not one who had received preferential treatment, and he had no problem with the contract. Derfoldi told him that if he had a problem with the contract, he would have to speak to the shop steward about it. Crosby said he did not recognize Madden as shop steward because he received preferential treatment and did not look out “for the guys at that job site.” Crosby also said he did not recognize Sorenson as lead techni- cian because the classification was not in the union contract and because he too got preferential treatment. Madden and Sorenson left the room, and Derfoldi told Crosby that the com- ments he had made would get him terminated. Derfoldi’s account: Crosby met with him on July 5, and complained to him about the work dispatches he had received on returning from medical leave. Derfoldi called Sorenson and Madden into the meeting, the latter so that Crosby could pursue union contract issues if desired. Crosby said that he did not recognize the lead mechanic’s authority to make work assign- ment decisions and challenged Derfoldi’s right to decide what jobs he worked on. Derfoldi told Crosby that he should raise those concerns with his union steward. Crosby said he did not recognize Madden’s authority as a union steward. Derfoldi testified that he ended the conversation by saying “that [he] considered it insubordination when [Crosby] refused to recog- nize everybody’s authority in the room and that in itself I thought—I believed were grounds for termination—refusing to do work or take specific jobs, and if he had a place—if he had a complaint, unless he didn’t want to go to the job [he] assigned him, that he needed to file a complaint with the Union.” Crosby responded that he wanted to talk to Hoppler. Madden’s account: Derfoldi asked him to be present as un- ion steward since Crosby had requested a meeting. At the meeting, Derfoldi told Crosby he had asked Madden to be pre- sent as union steward and Sorenson as lead mechanic. Crosby said that he did not recognize Sorenson as a lead me- chanic as there was no provision for such in the union contract, and he did not recognize Madden as union steward as the Union had never appointed him. Derfoldi said he had the right to assign one technician to a lead position and that Respondent had been notified in writing of Madden’s union stewardship appointment.10 Crosby complained about his new job assign- ments, saying that he felt he was being excluded from job sites he wanted. Derfoldi explained that each technician was as- signed to even groupings of job sites due to business reasons, including a computer system conversion. Derfoldi said he had the right through the union contract to assign the workforce as he thought necessary. Crosby said he considered it a violation of the contract, that Derfoldi was not even a technician or me- chanic and didn’t know what kind of work Crosby was capable of doing. He asked, “What gives you the right to tell me what jobs I can go to and what I’m qualified to work on?” Derfoldi told Crosby that if he felt there was any violation of the con- tract, he could address that through a union grievance. Sorenson’s account: he believed the purpose of the July 5 meeting was to discuss chain of command and delegation of authority. He testified that in the course of the meeting, Crosby said he did not acknowledge Sorenson as lead technician, Mad- den as union steward, or Derfoldi as his supervisor because Derfoldi did not know how to work on chillers. I credit Derfoldi, Madden, and Sorenson’s accounts of this conversation. Neither Sorenson nor Madden has any demon- strated bias or basis for slanting their testimonies. They are neutral witnesses. Madden’s testimony was particularly de- tailed, cogent, and logical. I give his testimony significant weight and note that in essentials, Derfoldi and Sorenson cor- roborated it. Although each account varied, the consensus of their testimonies was that Crosby complained of his job as- signments and rejected the authority of Derfoldi and Sorenson and the standing of Madden. Where his testimony conflicts with that portrayal of the meeting, I do not credit Crosby. At the conclusion of the discussion between Crosby and Der- foldi, Crosby said that he wanted to have a meeting with Hop- pler to find out if he was or wasn’t going to be terminated. Derfoldi left and when he returned told Crosby that Hoppler had agreed to have a meeting. 10 A letter dated March 10, from the Union to Respondent appointing Madden as shop steward was received into evidence. CARRIER CORP. 1145 Crosby testified that he and Derfoldi went to the conference room where Hoppler, Madden, and Sorenson were present. Hoppler did not testify regarding this meeting, and Derfoldi denied that he was present. According to Crosby, at this meeting, although Hoppler did not have a copy of the complaint letter before him, he asked Crosby his definition of the words used in the complaint letter, i.e., extremely abusive and aggressive behavior. Crosby said his definition was the way Hoppler treats employees and gave as examples Hoppler’s calling him at a jobsite and asking if he needed to send someone out who knew what he was doing, or if he liked his job. Hoppler said he behaved that way to every- body. Crosby said, “Well, you don’t do it to Rick [Sorenson].” Sorenson said, “Yes, he does. He does it to me all the time.” Crosby said he would not accept it. Hoppler asked if Crosby meant that he would not work for him if was not nice to all the employees. Crosby denied that and said he meant that when employees are upset, their performance is diminished. When the meeting concluded, Crosby offered to shake hands, but Hoppler refused, saying, “That’s all we got.” Crosby asked for and was given a copy of notes Hoppler had taken in the meet- ing.11 Crosby’s account of this meeting is not contradicted by any witness, but I cannot give it full weight as an account of Crosby’s July 5 meeting with Hoppler because it lacks internal congruity. Crosby’s stated reason for demanding a meeting with Hoppler on July 5, was because Derfoldi had said his con- duct was grounds for termination. Yet Crosby did not testify to having raised that subject with Hoppler at all, and the asserted meeting content does not rationally follow the preceding events. As the complaint letter was covered in Crosby’s May meeting with Hoppler, it makes no sense that it should be fully discussed again. Considering all testimony regarding his July 5 meeting with Hoppler, I can only conclude that Crosby—like Madden—at least in part, confused what occurred in his May Van Hoppler meeting with what took place on July 5. How- ever, the evidence suggests, and it is reasonable to infer, that Hoppler expressed animosity toward Crosby’s participation in the complaint letter in both meetings. The evidence also shows that Hoppler focused on Crosby as the complaint letter’s main proponent. At about this time, Respondent began preparations for a lay- off. According to Hoppler, when it “got to summer,” he told Derfoldi, Sorensen, and Madden to start thinking about a lay- off. It was not unexpected news for Derfoldi who testified that he had overheard conversations between Hassaneih and Hop- pler regarding Hassaneih’s decision that a layoff was necessary. Hoppler had also told him that he was being pressured to lay someone off. In late June, Derfoldi requested Crosby to extend his medical leave beyond June because of lack of work. There- after, Hoppler directed Derfoldi to lay someone off in order to get Respondent’s labor costs in line. Derfoldi denied that Hop- pler had ever indicated that he wanted Crosby selected for lay- off. 11 Crosby testified that he had misplaced the copy in his relocation to Florida. Prior to selecting an employee for layoff, Derfoldi consulted Sorenson and Madden.12 Though not specifically testifying about participation in the selection process, Sorenson testified that while Crosby was on medical leave, Sorenson serviced a number of Crosby’s work sites and discovered numerous prob- lems with the equipment Crosby had worked on. He reported the problems to Hoppler and Derfoldi. He also testified that in his opinion, Crosby was guilty of “milking” (taking excess repair time on) some jobs. He said he had accused Crosby of milking jobs and reported it to Hoppler and Derfoldi on more than one occasion.13 Sorenson also testified that he had re- ceived complaints from Sam’s Town, the Review Journal, Jerry’s Nugget, and Caesar’s Palace regarding Crosby’s work, which he reported to Hoppler and Derfoldi. Thereafter, Crosby was sent to those businesses for emergency work but not on a regular basis. Hoppler also testified of complaints about Crosby’s work from Caesar’s, the Review Journal, and Jerry’s Nugget. He neither investigated the complaints nor spoke di- rectly to Crosby concerning them. It was his practice, he said, to tell the complaining customer that Respondent would send another person out and do better for them and to caution em- ployees as a group to be careful of their work quality and be- havior. Derfoldi testified that he selected Crosby for layoff because of customer complaints, and because he believed him to have excessive repair time and excessive repair return calls. Specifi- cally, Derfoldi recalled that Ron Vandeist, assistant chief of Sam’s Town (a Boyd Gaming property), Ron Ranulf, facilities director of the Review Journal, and Pete Kurner of Stardust Hotel complained about Crosby’s work.14 Derfoldi testified that although he discussed the complaints with Crosby, he did not document either the discussions or the complaints. He also did not document excessive repair time or return repair calls because he did not consider Crosby’s range of excessive time or repair callbacks to be so significant as to justify termination. According to Derfoldi, it was not Respondent’s practice to document complaints. He said, hypothetically, that if an em- ployee appeared to have such excessive complaints or problems that discharge would be warranted, Respondent would then document that employee’s work problems. While admitting he had no objective verification of his opinion, he said that he believed Crosby to be the worst offender in terms of excessive repair time and callbacks. Derfoldi also considered that Crosby 12 Derfoldi testified that Hoppler was among those he consulted, but both he and Hoppler are adamant that Hoppler did not participate in the selection. 13 Crosby denied that Sorenson had ever complained to him about his job performance. I credit Sorenson’s testimony. I found him to be direct and sincere. 14 Ray Murphy (Murphy), chief engineer of the Stardust Hotel and supervised by Pete Kurner during 2000, testified that he had no prob- lems with Crosby’s work and knew of no dissatisfaction by anyone else. He did recall complaining sometime in 2000 that filters had not been changed for several years and requesting all the invoices and work orders although he did not, apparently, hold Crosby responsible. In these circumstances, I cannot find that Murphy’s testimony effectively rebuts Derfoldi’s assertion that Kurner asked for Crosby’s replacement as Stardust service technician. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146 was the least senior of the journeyman applied mechanics. Derfoldi further testified that Crosby’s conduct during the July 5 meeting and his opposition to Respondent’s work assignment changes significantly influenced his decision to lay off Crosby. Although Crosby’s conduct in the July 5 meeting fell last in the list of reasons given by Derfoldi for selecting him for layoff, Derfoldi testified that it was Crosby’s conduct in denying Der- foldi’s authority that most influenced the layoff decision. He said he found objectionable Crosby’s refusal to “recognize the authority that I had to assign job assignments. He didn’t recog- nize the authority of the union steward if he had a complaint to deal with any issues as far as represented labor or my lead me- chanic at the time . . . to assess abilities of other mechanics and to determine what levels and what places they should work at, and blanket statements that he had made that . . . he does not work for us, he works for the union.” When asked by counsel for the General Counsel if he had based his selection, at least in part, on Crosby’s refusal to pursue his complaints with the un- ion steward, Derfoldi answered, “No, not at all.” According to Hoppler, in early July, Derfoldi, Sorensen, and Madden came to him and recommended that Crosby be laid off. Derfoldi and Sorensen expressed their reasons for selecting Crosby, and Madden, as union steward, merely agreed. Der- foldi and Sorensen pointed out that the applied work, which Crosby performed, was less busy than the unitary work and a journeyman mechanic qualified to do applied work was costly. Both had concerns about Crosby’s customer calls and perform- ance.15 Hoppler agreed with their choice. He denied that he ever suggested to Derfoldi or Sorensen that they should select Crosby or that his ratification of the selection had anything to do with the complaint letter. Derfoldi and Hoppler credibly testified as to the layoff selection process, and I find that al- though he approved the choice of Crosby for layoff, Hoppler had no part in his selection. Emails dated July 5 from Hoppler to Derfoldi and July 6 from Derfoldi to Hoppler were identified and received into evidence without explanation or testimony. The July 5 email from Hoppler reads: On Friday, July 7th Carrier Law Vegas will lay off Ken Crosby . . . . This is a reduction in work force due to lack of work. We have lost 2 large service agreements in the past month and feel these actions must be taken immediately. Linda, Ken has $100.00 of Carrier imprest money. Please have this deducted from his final pay check. The July 6 email from Derfoldi reads: Van, 15 In his posthearing brief, counsel for the General Counsel argues that testimony regarding recommendations by Sorensen and Madden is inadmissible hearsay and should not be credited. Counsel did not raise this object at the hearing, and it is untimely to raise it now. Fed.R.Evid. 103(a)(1). Moreover, both Madden and Sorensen testified at the hear- ing, and counsel was free to question them about their recommenda- tions or lack thereof. While Sorenson did not specifically testify that he recommended Crosby for layoff, he was critical of Crosby’s work and his testimony is neither inconsistent with Derfoldi’s nor indicative of unreliability. Due to the loss of 2 large service agreements and a lack of scheduled work, we need to reduce our work force. This action must be taken immediately. I am recommending that Ken Crosby . . . be the first lay off beginning July 7th. The General Counsel argues that the emails show Hoppler directed the layoff of Crosby. It is unfortunate that neither the General Counsel nor Respondent inquired into the circum- stances of the emails for they are confusing as dated. The con- tents of the emails only make sense if Derfoldi’s preceded Hoppler’s. Because of this confusion, and because a rational reading suggests that Hoppler’s email was misdated, I do not find this evidence to be probative of whether Hoppler made the decision to lay off Crosby. Hoppler notified Hassaneih that he was going to lay off Crosby. Hassaneih questioned him closely as to why he had chosen that particular technician. Hoppler said that Crosby was a highly paid technician and the other technician who was also highly paid had been with the company for over 20 years. Hoppler said Derfoldi and the shop steward suggested the choice, and he thought it was the right thing to do financially. Hassaneih then approved the layoff of Crosby. Although Respondent admits there was no explicit advance warning of layoffs, Hoppler testified that in his morning work meetings with employees, he had discussed the business slow- down. Hassaneih also testified he discussed the company’s economic problems in his meetings with employees in May. Prior to the historically slow summer months, technician labor hours had already been reduced to 32 hours a week, and Crosby was asked to extend his medical leave because of lack of work. On July 10, when Crosby reported to work, he noticed that his name was not on the dispatch board. After the morning technician meeting, Crosby joined Derfoldi in his office. Mad- den was present. Derfoldi informed Crosby he was laid off. According to Derfoldi, the discussion lasted at least an hour, and he told Crosby of his responsibility for productivity, profit- ability, time on the jobs, and other issues, including Crosby’s being least senior journeyman technician. Crosby was given an Employee Status form noting his layoff for “labor reduction.” Derfoldi drove Crosby home, stopping to eat on the way. Ac- cording to Crosby, Derfoldi told him that he had laid him off so that he could get unemployment even though Hoppler had di- rected that he be fired. Derfoldi asked him not to pursue the issue because he would get in trouble with Hoppler for not doing as he had been ordered. Derfoldi denied telling Crosby that Hoppler had wanted to or instructed him to discharge Crosby.16 Crosby telephoned Hassaneih that same day as did J. Crosby. Crosby testified that Hassaneih assured him he had not been laid off because of the complaint letter, that part of the reason was because he needed more time to heal from his work injury, and that as soon as the workload picked up he would be 16 I accept Derfoldi’s testimony over that of Crosby. Crosby’s testi- mony lacks logical consistency. It makes no sense for Derfoldi to have said Hoppler wanted him to terminate Crosby and to request that Crosby not pursue the layoff issue since Hoppler could scarcely fail to learn that Crosby had been laid off rather than terminated. CARRIER CORP. 1147 brought back. J. Crosby testified that Hassaneih told her that he and Hoppler decided to lay off Crosby as there was not enough work, and it was in the best interests of the company. Accord- ing to Hassaneih he explained to Crosby the company’s eco- nomic situation. He did not say Respondent would recall Crosby shortly. I accept Hassaneih’s testimony over Crosby’s. He appeared candid and clear about conversations and events, and his testimony is consistent with J. Crosby’s. Crosby grieved his layoff. On October 26, a meeting was held concerning the grievance at the union hall. Present were Milt Menchey (Menchey), business agent, Crosby, J. Crosby, Madden, and Hoppler. Crosby testified that Hoppler said he had made the decision to lay off Crosby, that seniority was not a consideration, and that he used no criteria in making the lay- off selection. According to Madden, J. Crosby did most of the talking and said she felt Crosby’s seniority rights had been violated. Menchey said there were no seniority clauses in any of the union contracts. J. Crosby testified that Hoppler said he made the layoff decision along with Derfoldi, and the lead technician and that seniority had nothing to do with the deci- sion. She also testified that Hoppler said there was no criteria to go by. Hoppler testified that he explained the selection of Crosby essentially as he explained it to Hassaneih, that he said his subordinates had collectively made the decision, and that there was no specific criteria set by the Union for layoffs. In saying he made the decision to lay off Crosby, he meant that, as the manager, he had ultimate responsibility for the decision. Under cross-examination, Crosby varied his testimony somewhat and said that Hoppler said he talked to Derfoldi and Sorenson before making the layoff decision and that he stated, “I can do whatever I want.” Crosby did not show a good recall of the meeting, stating that although there were other things said, he could not pull them out. There are normal variances in the testimony as to what was said, but it appears clear that Hoppler said he had made the layoff decision after input from Derfoldi and Sorenson and that seniority was not a factor. I do not credit Crosby’s testimony that Hoppler said he used no criteria in making his selection. Hoppler testified he said the Union had no specific criteria, and J. Crosby and Madden’s testimonies also suggest that the discussion focused on whether any contractual criteria had to be followed. I accept Hoppler’s testimony about what he said and find he merely made an accu- rate observation that the union contract establishes no criteria for layoff selection and that Respondent has the contractual right to make an arbitrary decision. Following the meeting, Menchey said he would present the facts to the union attorney, and a decision would be made whether to pursue the grievance further. Sometime later, the Union decided to drop the grievance. Regarding Respondent’s complaints about his work, Crosby denied that any supervisor had ever notified him of customer complaints or, since his first year of employment, driving com- plaints. He said that Hoppler regularly told him he did a good job, and in October or November 1999, while at a restau- rant/bar, had told him he loved him as a technician and that he should never leave the company. According to Crosby, Hop- pler also asked him to work for the company he intended to establish. Crosby told Hoppler to tell him that the next day.17 Crosby also testified that he was given extra vacation a year earlier than other employees as a mark of Hoppler’s respect for his work. On May 15, Hoppler notified Crosby that he was awarding him an additional week of vacation. The additional week of vacation was normally awarded to employees after 5 years’ service. Hoppler told Crosby he was shortening the time to 4 years in his case. Later that day, Crosby received a letter confirming that an additional week of paid time off per year was awarded him “[I]n recognition for your continued good service and dedication to your profession.” According to Hop- pler, Respondent has no paid vacation policy. He developed a program of granting 1 week paid vacation after 5 years of em- ployment as an award for longevity and dedication and addi- tional paid vacation time after 8 years. The communication to Crosby was a form letter, a facsimile of which was given to each employee upon attainment of his 5th and 8th year of em- ployment. Hoppler testified that Crosby was planning surgery at the time and asked for some financial assistance. Respon- dent, therefore, granted the additional vacation week a year early in response to Crosby’s request and shortly before he left on medical leave.18 Following Crosby’s layoff, Roger Derrick (Derrick) was hired as a unitary technician and thereafter laid off.19 Doug Fenton (Fenton) transferred from Respondent’s Miami office and worked for just a few months. He was transferred to the Las Vegas branch to work on a special project involving large instal- lations on September and returned to Miami in December when the project did not work out. Winchester testified that of the employees who signed the complaint letter, Carter, Webb, Haig- wood, and he were still working for Respondent. Williams took a voluntary layoff to work for Hoppler’s newly formed company but was never replaced, and no one replaced Crosby. Project Manager Dan McGinty, was laid off on September 1. Derfoldi testified that after Hoppler left the company, Respon- dent, in conformity with its usual practice, conducted an audit of company records. The auditor notified Derfoldi that former em- ployees still had access to Respondent’s private telephone net- work. Derfoldi’s consequent review of telephone billing records led him to conclude that following his layoff, Crosby had opened an account on Respondent’s private network and made phone calls on it to Winchester during work hours. Following his in- vestigation, Derfoldi met with Winchester. He told him the 17 Both the setting and Crosby’s response suggest Crosby considered the statements to be in vino but without veritas. There is no evidence the effusive praise was repeated; therefore, I cannot find it provides evidence that Crosby was a stellar employee. 18 I credit Hoppler’s testimony. I found him to be direct and forth- right. Respondent no longer employs him. Indeed, he is a competitor and, as such, has no reason to distort the facts. I conclude, therefore, that Crosby’s being granted a week of vacation after 4 rather than 5 years does not signify that Respondent considered him to be an out- standing employee. However, Hoppler testified that he had told Crosby he was a good technician, and there is no evidence that Hoppler consid- ered his work to be unsatisfactory in any way. 19 As noted above, the position of unitary technician was paid at a significantly lower rate than the applied technician position held by Crosby. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148 number of hours he was spending on the phone during com- pany time on a company cell phone that Respondent paid for was a conflict of interest both to productivity and “a conflict of Crosby with his issues with the company on company time.” He told Winchester that he could talk to Crosby anytime he liked on his own time, but that it was a company time issue and that he would terminate him if it continued. Derfoldi admitted that employees are generally allowed to make personal calls on the company system. According to Winchester, Derfoldi told him that a corporate investigator looking through telephone records had found evi- dence that Crosby had illegally gained access to the telephone radio and telephone network, and that Winchester had been talking to Crosby using the equipment. Derfoldi said he was upset that Crosby had been talking to Winchester using a two- way radio system designed for Respondent’s employees. Win- chester told Derfoldi that the calls were not just social, that he was getting technical support information from Crosby. Der- foldi told Winchester that Crosby’s connection on the tele- phone/radio would be shut off. Winchester received no disci- pline beyond an oral warning. B. Discussion 1. Alleged 8(a)(1) violations a. Alleged threats by Hoppler The General Counsel alleges that Respondent violated Sec- tion 8(a)(1) of the Act when Hoppler threatened Crosby with unspecified reprisals for engaging in protected activities. The General Counsel points to unrefuted testimony that when Crosby returned to work on July 5, Hoppler declined to shake hands with him and said he was unwilling to try to get along with “someone who stabs me in the back.” The General Coun- sel also points to a meeting later that day, where Hoppler ac- cused Crosby of stabbing him in the back and being sneaky and unmanly.20 The General Counsel argues that Hoppler thereby communicated an implied threat of unspecified reprisal against Crosby. While employers are free under Section 8(c) of the Act to express their views, arguments, or opinions about and regarding protected activity as long as such expressions are unaccompa- nied by threats of reprisals, force, or promise of benefit, Section 8(a)(1) prohibits certain speech and conduct deemed coercive. A review of Board case law suggests that derogatory statements are not per se violative of Section 8(a)(1). In Baptist Hospital, Orange, 328 NLRB 628, 635 (1999), the employer’s supervisor accused an employee of being a “back-stabber” because she did not follow the chain of command in complaining to upper man- agement. However, no independent 8(a)(1) violation was iden- tified based on the statement,21 and the Board declined to find that referring to union supporters as “clowns” in a letter to em- ployees violated Section 8(a)(1). Carrom Division, 245 NLRB 703 fn. 1 (1979). Statements equating protected activity with disloyalty are generally evaluated in the context of an em- 20 As set forth above, there is doubt as to whether those statements were made at the meeting on July 5, or an earlier meeting in May. However, for purposes of determining whether the statements violated Sec. 8(a)(1), the timing is not important. 21 See also Ekstrom Electric, 327 NLRB 339 (1998). ployer’s unlawful interference and coercion related to protected rights. See Fieldcrest Cannon, Inc., 318 NLRB 470 (1995); Wilker Bros. Co., 236 NLRB 1371 (1978), and cases cited by the General Counsel, which involve specific threats as well as denigration of an employee.22 In Sea Breeze Health Care Center, 331 NLRB 1131 (2000), and cases cited therein, however, the Board stated that an em- ployer’s expression of extreme disappointment with union ac- tivity equated protected activity with disloyalty, was coercive, and contained a veiled threat of reprisal in retaliation for pro- tected activity. Guided by the Board in Sea Breeze, I conclude that Hoppler’s remarks, although made in a context free from any other unlawful statements, equate Crosby’s protected activ- ity with disloyalty and constitute a withdrawal of supervisory friendship and approval, which is tantamount to a veiled threat of reprisal. As such, Hoppler’s statements violate Section 8(a)(1) of the Act. b. Alleged threats by Derfoldi The General Counsel alleges that on or about July 6, Der- foldi threatened employees with discharge for failing to partici- pate in union activities. This allegation rests on a statement made by Derfoldi to Crosby during their meeting of July 5, that Derfoldi considered it insubordination when Crosby refused to recognize every- body’s authority in the room. That in itself, Derfoldi said, was grounds for termination—refusing to do work or take specific jobs—if [Crosby] had a complaint, unless he didn’t want to go to the job [Derfoldi] assigned him . . . he needed to file a com- plaint with the Union.” The General Counsel argues that by this statement, Derfoldi unlawfully threatened Crosby that his refusal to recognize the union steward and, presumably, follow union grievance procedures was grounds for termination. Counsel for the General Counsel correctly summarizes the law as holding that an employer violates the act by adverse action toward an employee because of his opposition to a union official or a refusal to engage in union activities. If Derfoldi’s statement could be reasonably and objectively comprehended as a threat that Crosby might be terminated because he declined to recognize Madden as his union representative, then the statement is, as Counsel for the General Counsel argues, a threat in violation of the Act. Derfoldi’s subjective intent in making the statement or Crosby’s reaction to it is not a deter- minative consideration, e.g., Swift Textiles, 242 NLRB 691 fn. 2 (1979). “The issue is whether objectively . . . remarks rea- sonably tended to interfere with the employee’s right to engage in [a] protected act.” Southdown Care Center, 308 NLRB 225, 227 (1992). I cannot find that a reasonable person would regard Der- foldi’s statement as an unlawful threat. Although he said he considered Crosby’s refusal to recognize “everybody’s author- ity in the room” to be insubordination, Derfoldi further expli- cated what he thought constituted grounds for termination: refusing to do work or to take specific jobs. His further refer- ence to the Union was merely that if Crosby had a complaint 22 Golden Eagle Spotting Co., 319 NLRB 64 (1995); Belding Haus- man Fabrics, 299 NLRB 239 (1990); and Southern Illinois Petrol, Inc., 277 NLRB 160 (1985). CARRIER CORP. 1149 and did not want to go to the assigned job, he needed to file a complaint with the Union. Thus, in spite of his initial broad charge that Crosby’s rejection of “everybody’s authority” was insubordinate, Derfoldi immediately narrowed the grounds for termination to encompass only Crosby’s refusal to do work or take specific jobs. I conclude that Derfoldi’s caution to Crosby that his words were grounds for termination are reasonably susceptible of a lawful interpretation, i.e., that refusing to ac- cept job assignments could result in termination. In reaching this conclusion, I note that none of the other participants related any statement that could be construed as a threat to Crosby for refusing to accept Madden’s authority. Crosby testified that Derfoldi’s warning was made after Sorenson and Madden left the meeting, which would explain their silence on the subject, but even his version of what was said does not link any threat to his rejection of Madden. Crosby testified only that Derfoldi told him that his comments would get him terminated. As there is insufficient basis to ascribe an unlawful rather than a lawful meaning to Derfoldi’s words, I cannot find that he threatened Crosby with discharge because he refused to recognize the authority of the union steward or to pursue his concerns through the Union. See Pullman Power Products Corp., 275 NLRB 765 (1985). Accordingly, I shall dismiss this allegation of the complaint. The General Counsel, in his amendment to the complaint, further alleges that Derfoldi, in January 2001, threatened em- ployees with layoff for their protected concerted activities and their participation in Board proceedings. This allegation rests on Derfoldi’s statements to Winchester in January 2001. Der- foldi’s prohibition of Winchester’s use of the company tele- phone system to talk to Crosby was based on no established company rule but rather on Crosby’s “issues” with the com- pany.” The issues referred to must have comprehended Crosby’s having filed a grievance concerning his discharge and/or a charge with the Board. It is irrelevant that Crosby may unlawfully have obtained access to the company telephone system. Winchester was not charged with any wrongdoing, and the thrust of the prohibition was to single Winchester out for restriction on telephone use and thereby interfered with his right to discuss protected matters with others. The restriction and the accompanying oral warning were, therefore, violative of Section 8(a)(1). c. July 10 layoff of Crosby Employees acting together to report or complain of supervi- sor misconduct falls clearly under the umbrella of employee rights that are protected by Section 7 of the Act.23 There is no dispute that the complaint letter circulated and presented to Respondent in May constituted concerted protected activity. The evidence is also clear that Crosby was its chief proponent and that Respondent was aware of the scope of his involve- ment.24 The question is whether Respondent bore animus to- 23 See Georgia Farm Bureau Mutual Insurance Co., 333 NLRB 850 (2001), and Baptist Hospital, Orange, above. 24 Respondent argues that Hoppler and Derfoldi did not know the ex- tent of Crosby’s activity, and that Winchester as the circulator of the letter was more actively involved than Crosby. Although there is no direct evidence that Hoppler or Derfoldi knew of Crosby’s catalytic ward Crosby because of his protected activities and retaliated by laying him off in July. There is no evidence Hassaneih or Burton had animus to- ward Crosby or any employee because of the complaint letter. Indeed, the two company officials were, by all accounts, very concerned about employee complaints and took immediate and extensive steps to resolve them. Hassaneih also committed himself to scrutinizing any unit personnel action taken in the Las Vegas branch, and his overall conduct in dealing with the complaint letter militates against any finding that he or any corporate officer resented employees’ exercise of protected rights. Hassaneih’s lack of animus is significant because it was Hassaneih who determined and urged that Respondent lay off unit employees at its Las Vegas branch. The evidence shows that Respondent experienced a business turndown in 2000. In response, Hassaneih determined that economic expediency required a layoff of employees in the Las Vegas office. The General Counsel contends that Respondent’s economic defense is a sham, arguing that Respondent did not document the asserted loss of two large service contracts. Re- spondent did, however, document the slowdown in business. While the General Counsel argues that the 2000 earnings were not significantly off plan target, the Board has made it clear that an employer’s “business conduct is not to be judged by any standard other than that which it has set for itself.” FPC Adver- tising, Inc., 231 NLRB 1135, 1136 (1977). Moreover, “[w]hether procedures other than a layoff might have been more or equally effective in remedying the Respondent’s eco- nomic loss is not a matter the Board is empowered to decide. The Board’s authority . . . extends only to the determination of whether the conduct is discriminatorily motivated or otherwise in violation of the Act.” Gem Urethane Corp., 284 NLRB 1349, 1350 (1987).25 In light of Respondent’s documented economic situation, and in absence of any evidence of animus on Hassaneih’s part, there is no evidence that Hassaneih’s insis- tence on layoffs was other than a legitimate business response to fiscal exigencies. Hassaneih’s credible testimony reveals that he pressed for layoffs prior to the creation of the complaint letter and did not deviate from or alter that approach as one proposed solution to Respondent’s economic problems. More- over, the evidence shows that no one was hired to replace Crosby in the applied mechanic position. Although a unitary mechanic was hired, as that classification is paid at a lower rate than Crosby’s and as Respondent’s service focus was shifting from applied work, the addition of a unitary mechanic does not contradict Respondent’s assertion that it was attempting to reduce labor costs. Moreover, the newly hired unitary me- chanic was thereafter laid off, and additional workforce reduc- tion through attrition occurred after Crosby was laid off. While, as the General Counsel points out, Webb was apparently role in the complaint letter, given the extensive discussion of the matter between upper management and employees, Hoppler’s employee inter- views, and Hoppler’s refusal to shake hands with Crosby and accusa- tion of disloyalty, knowledge can reasonably be inferred. 25 In keeping with the Board’s position, I have not considered the General Counsel’s assertion that an ineffective sales force was the source of Respondent’s economic problems or that failure to focus on the sales department was evidence of a pretextual economic defense. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150 promoted to journeyman status effective April 3, 2001, I cannot infer discriminatory motive from that fact or from Respon- dent’s failure to call Crosby back to work. Crosby had, by that time, relocated to Florida, and Respondent believed he had, postlayoff, unlawfully signed himself on to the company tele- phone system. Either was a nondiscriminatory reason for fail- ing to recall Crosby. I conclude that in urging technician lay- offs, Hassaneih was motivated by a valid desire to reduce Re- spondent’s labor costs and stem its economic losses. Conse- quently, I find that the General Counsel has not met his burden of proving the layoff decision was based on any unlawful con- sideration. Concluding that the motivation for the layoff was nondis- criminatory, however, answers only half the question. Remain- ing is the issue of whether Crosby was discriminatorily selected for layoff because of his prominent participation in the com- plaint letter. If Respondent selected Crosby for layoff in re- taliation for the complaint letter, such is violative of Section 8(a)(1) of the Act. Georgia Farm Bureau, above. I analyze the lawfulness of Crosby’s selection by applying the Board’s ana- lytical framework set out in Wright Line.26 Under this frame- work, the General Counsel must make a prima facie showing sufficient to support an inference that animosity toward Crosby’s protected activity was a motivating factor in his selec- tion for layoff. The prima facie case may be established by proving the following four elements: (1) the alleged discrimina- tee engaged in union or protected concerted activities; (2) Re- spondent knew about such activity; (3) Respondent took ad- verse employment action against the alleged discriminatee; and (4) there is a link or nexus between the protected activity and the adverse employment action. Signature Flight Support, 333 NLRB 1250 (2001). The first three elements are established herein. Crosby clearly engaged in protected activity; Respon- dent knew of Crosby’s protected activity, and Respondent laid off Crosby—an adverse employment action. The pivotal factual inquiry in determining whether the Gen- eral Counsel has made a prima facie showing involves the fourth element, i.e., whether there is a link or nexus between Crosby’s involvement in the complaint letter and/or his pro- tected rejection of Madden as union steward and his selection for layoff. In resolving this issue, it is necessary to determine, if possible, Respondent’s motive in selecting Crosby. If the evidence shows that animosity toward Crosby’s involvement in the complaint letter formed any part of the basis for his layoff selection, then the General Counsel has made his prima facie case.27 Motive is a question of fact, and the Board may infer dis- criminatory motivation from either direct or circumstantial evidence. Since direct evidence is rare, evidence of an em- ployer’s motive in personnel actions must frequently be gleaned from the circumstances surrounding the actions. Indi- 26 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). 27 Once the General Counsel has made its prima facie case, the bur- den shifts to Respondent to show, in essence, that it would have taken the same action, for nondiscriminatory reasons, even in the absence of protected activity. cations of discriminatory motive may include expressed hostil- ity toward the protected activity,28 abruptness of the adverse action,29 timing,30 failure to conduct a full and fair investiga- tion,31 failure to disclose the reason for the action,32 false asser- tion of lawful purpose,33 pretextual reason,34 disparate treat- ment,35 departure from past practice,36 and/or the employer’s inability to adhere to a consistent explanation for the action.37 Respondent argues that there is no evidence of “union” ani- mus on its part, citing its apparently harmonious contractual relationship with the Union. That does not preclude the possi- bility of animus toward protected activities other than union activity. See CWI of Maryland, Inc., 325 NLRB 791 (1998). The General Counsel argues that Hoppel had knowledge of Crosby’s involvement in the complaint letter and bore him considerable animosity for it. I agree that Hoppel had both knowledge and animosity. However, while Hoppel demon- strated undeniable hostility toward Crosby, there is no credible evidence that Hoppel selected Crosby for layoff or influenced anyone else’s selection. All persuasive evidence supports the conclusion that Derfoldi, in conjunction with Sorensen and Madden, chose Crosby for layoff.38 That Hoppler approved the selection and took responsibility for it at the union grievance meeting reflects nothing more than an exercise and an affirma- tion of his ultimate authority in layoffs. It does not, as the Gen- eral Counsel asserts, show that Hoppler “actually made the decision to select [Mr.] Crosby.” It may well be, as the General Counsel argues, that Hoppler wished to retaliate against Crosby for the complaint letter, and it may be that Hoppler was de- lighted by his selection. However, the mere fact that an em- ployer may desire to terminate an employee to curtail union activities or, as here, to punish protected concerted activity, does not, of itself, establish the illegality of the layoff. The fact that Hoppler may have welcomed the selection of Crosby as layoff candidate does not prove that Hoppler made the selection or render the layoff unlawful. Klate Holt Co., 161 NLRB 1606, 1612 (1966); Avondale Industries, 329 NLRB 1064 (1999). 28 Mercedez Benz of Orland Park, 333 NLRB 1017 (2001). 29 Dynabil Industries, 330 NLRB 360 (1999). 30 Bethlehem Temple Learning Center, Inc., 330 NLRB 1177 (2000). 31 Bonanza Aluminum Corp., 300 NLRB 585 (1990). 32 Dynabil Industries, supra; NLRB v. Griggs Equipment, 307 F.2d 275 (5th Cir. 1962). 33 Sahara Las Vegas Corp., 284 NLRB 337 (1987). 34 Pacific FM, Inc., 332 NLRB 771 (2000); Fluor Daniel, 311 NLRB 498 (1993). 35 NACCO Materials Handling Group, Inc., 331 NLRB 728 (2000). 36 Sunbelt Enterprises, 285 NLRB 1153 (1987). 37 Atlantic Limousine, 316 NLRB 822 (1995). 38 The General Counsel strongly relies on the emails between Hop- pler and Derfoldi as establishing Hoppler’s involvement in the selec- tion. I agree that the emails are confusing—even suspicious—and have not been explained. However, The Board has observed that even when the record raises substantial suspicions regarding adverse action against employees, the General Counsel is not relieved of his burden of proving that Respondent was illegally motivated. Murphy Bros., 267 NLRB 718 (1983); Carrom Division, 245 NLRB 703 (1979). As set forth above, I cannot find the emails to constitute persuasive evidence that Hoppler selected Crosby for layoff. CARRIER CORP. 1151 Counsel for the Charging Party argues that Derfoldi’s assum- ing responsibility for the layoff was a contrived attempt at de- flecting blame from Hoppler. I have considered that in select- ing Crosby for layoff, Derfoldi was proxy for Hoppler. How- ever, there is no direct evidence of this, and it cannot be in- ferred from the circumstances. It cannot be assumed that Der- foldi felt resentment at employees’ criticism of Hoppler; there- fore, there must be some evidence that Derfoldi took offense at the complaint letter. There is no such evidence. Derfoldi is not accused of having expressed any animosity toward Crosby for his part in the complaint letter; there is no evidence that he felt any ill will toward any employee because of the letter and no evidence he engaged in machinations with Hoppler to terminate Crosby. I have also considered whether Derfoldi’s selection of Crosby for layoff was motivated, at least in part, by Crosby’s rejection of Madden as his Union steward. Derfoldi testified that his July 5 meeting with Crosby played a considerable part in his decision to select him for layoff, and admittedly Crosby’s conduct included a refusal to recognize Madden as union stew- ard. For reasons set forth above, I conclude that the effect of Crosby’s refutation of Madden was too minimal to play any significant role in the layoff decision. It is clear that Derfoldi focused on Crosby’s disavowal of his and Sorenson’s authority when warning Crosby about his statements, and there is no evidence that there was any other discussion or concern about Crosby’s objection to Madden’s stewardship. Accordingly, I find Crosby’s protected objection to Madden as union steward was not an appreciable factor in Derfoldi’s layoff selection. There is no evidence of any false or pretextual basis for the layoff or the selection. Respondent has demonstrated its eco- nomic need for a reduction in labor costs, and employees must have known the business slowdown as their shifts had been shortened. Certainly, Crosby was aware of the slowdown as he had been asked to extend his medical leave because of lack of work. Although Derfoldi had no documentation of poor work by Crosby and had not disciplined him in any way because of customer complaints, there is no evidence of pretext or pretense in Derfoldi’s opinion that Crosby had more complaints than other employees. Evidence that Crosby was a skilled and de- pendable technician was presented, and evidence of complaints about Crosby’s work was also presented. It is not necessary for me to resolve those conflicting views of Crosby’s work. The Board requires more than discredited reasons to establish moti- vation. In Garrett Flexible Products, 270 NLRB 1147, 1148 (1984), the Board held, that “the question of motivation where an unlawful discharge is alleged is not answered by discrediting a respondent’s asserted reason for the discharge. Rather, the answer to that question rests upon an evaluation of all the rele- vant evidence.”39 Mere suspicion that animosity toward pro- tected activity may have motivated or contributed to the deci- sion to lay off Crosby is not enough. Derfoldi may have been wrong in his assessment of Crosby’s work; he may have exag- gerated his performance deficiencies, but unless there is evi- dence that he was motivated in his selection of Crosby by unlawful considerations, the accuracy of his perceptions is not 39 See also Pullman Power Products, 275 NLRB 765, 767 (1985). critical. It is merely a factor to be considered in an evaluation of all the relevant evidence. Inaccuracy alone cannot prove unlawful motive, and there is no other evidence that Derfoldi had any animosity toward Crosby’s protected activities. Further, the selection of Crosby for layoff was not Derfoldi’s decision alone. The evidence shows that Sorensen and Madden concurred. There is no basis for me to infer that they were influenced by improper animus. Moreover, Derfoldi, even if mistaken in his assessment of the quality of Crosby’s work or work ethic, had a concrete and lawful reason for selecting Crosby for layoff. Credited testimony establishes that Crosby engaged in inappropriate, if not insubordinate, behavior when he told Derfoldi that he did not recognize his or Sorenson’s authority. Crosby’s conduct in that instance was in no way protected. Derfoldi testified that Crosby’s noncompliant be- havior to him colored all other factors relied on in selecting Crosby. There is no persuasive evidence that contradicts Der- foldi’s explanations of why he selected Crosby for layoff. I find, therefore, that the necessary link between Crosby’s layoff and his protected activities has not been established. The Gen- eral Counsel has not, therefore, provided evidence sufficient to support an inference that animosity toward Crosby’s protected activity was a motivating factor in his layoff and, thus, has not established a prima facie case. Accordingly, I find the General Counsel failed to meet his burden of proof to show that Re- spondent was motivated by unlawful considerations and vio- lated Section 8(a)(1) of the Act by laying off Crosby. Inasmuch as I have found that the General Counsel has failed to establish a prima facie case that Respondent interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the act by laying off Crosby, the companion allegation of unlawful refusal to reinstate also fails. Accord- ingly, I shall dismiss those allegations of the complaint pertain- ing to the layoff of Crosby. CONCLUSIONS OF LAW 1. By equating protected activity with disloyalty, making implied threats of reprisal, and prohibiting employees from talking with others about protected activities, including Board proceedings, Respondent has engaged in unfair labor practices affecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. Respondent has not violated the Act in any other manner alleged in the complaint. REMEDY Having found that 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. On these findings of fact and conclusions of law and on the entire record, I issue the following recommended40 40 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, the findings, conclusions, and recom- mended Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all purposes. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152 ORDER The Respondent, Carrier Corporation, Las Vegas, Nevada, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Equating protected activity with disloyalty to Carrier Corporation. (b) Making implied threats of reprisals to employees because they engaged in protected concerted activities. (c) Prohibiting employees from talking with others about concerted protected activities, including Board proceedings. (d) 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 effec- tuate the policies of the Act. (a) Within 14 days after service by the Region, post at its fa- cility in Las Vegas, Nevada, copies of the attached notice marked “Appendix.”41 Copies of the notice, on forms provided by the Regional Director for Region 28, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the 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 in- volved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respondent at any time since May 2000. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official 41 If this Order is enforced by a judgment of the 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 Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 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 be dis- missed insofar as it alleges violations of the Act not specifically found. 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 equate protected activity with disloyalty to Carrier Corporation. WE WILL NOT make implied threats of reprisals to you be- cause you engage in activities protected under Section 7 of the Act, described above. WE WILL NOT prohibit you from talking with others about activities, including Board proceedings, protected under Sec- tion 7 of the Act, described above. 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. CARRIER CORPORATION