Children's Services International, Inc.

CHILDREN’S SERVICES INTERNATIONAL 347 NLRB No. 7 67 Children’s Services International, Inc. and Service Employees International Union, Local 817.1 Case 32–CA–21495–1 May 22, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN AND SCHAUMBER On April 19, 2005, Administrative Law Judge Jay R. Pollack issued the attached decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed an answering brief, and the Respondent filed a reply 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 decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this Decision and Order and to adopt the recommended Order as modified and set forth in full below. I. FACTS A. Background The Respondent, which was founded by Jean Miner, runs child-care centers for low-income families and ad- ministers a state grant program for independent child- care providers and their clients. In 2002, following a Board-conducted election, the Union was certified as the representative of two units of the Respondent’s employ- ees. One unit comprised those employees who worked in the Respondent’s child-care centers. This unit is referred to as the center-based unit. The other unit comprised those employees who administered the state grant pro- gram. This unit is referred to as the administrative unit. The parties executed one collective-bargaining agree- ment covering both units for the period of October 1, 2002, through September 20, 2004. The administrative unit consisted of the three depart- ments that administered the state grant program— eligibility, provider-contract, and payout. The eligibility department was responsible for enrolling families who needed subsidized child care. The provider-contract de- partment was responsible for enrolling child-care provid- ers into the program. The payout department was re- sponsible for calculating payment for enrolled child-care providers. Prior to 1999, all the administrative functions had been handled by a single department. 1 We have amended the caption to reflect the disaffiliation of the Service Employees International Union from the AFL–CIO effective July 25, 2005. The provider-contract department included employees Aurora Urzua, Griselda Palafox, and Roxanne Segobia, and was supervised by Sylvia Alderete (who also super- vised the eligibility department). Urzua was the most senior employee in the administrative unit, having worked in the unit when all the functions were in one department. Palafox joined the provider-contract de- partment in 1999. In 2001, Segobia joined the payout department, and she transferred to the provider-contract department in 2003. B. Miner’s April 14 Meeting In late 2003, a center-based employee filed with the Board a petition to conduct an election to decide whether to withdraw the Respondent’s authority to enforce the parties’ union-security clause for the center-based unit. In early 2004, prior to the deauthorization election, the Union produced a flyer that was highly critical of Jean Miner.2 In the April 1, 2004 deauthorization election,3 the employees voted to continue to authorize the union- security clause. On April 14, Miner held a meeting with the adminis- trative unit employees to discuss the flyer. As employees entered the meeting, she gave each a copy of the flyer. When Palafox refused to take a flyer, Miner responded that Palafox did not need one because she had created the flyer. Palafox denied Miner’s accusation. During the meeting, Miner expressed her extreme displeasure with the circulation of the flyer. She told employees that she had been through their personnel files, knew they were uneducated, and believed that working for the Respon- dent was the best job they were ever going to have and that they were lucky to have those jobs. After Segobia, Urzua, and Palafox asked for and received permission to leave the meeting, Miner continued the meeting, refuting the allegations in the flyer. When an employee asked Miner why she was shaking and was so visibly upset, she responded that she just needed to hit something. C. Urzua and Palafox Layoffs In late April, Respondent’s executive director, William O’Connell, learned that the Respondent would have a shortfall in the funds it received from the State for the upcoming fiscal year, which was to begin on July 1. He informed Ruben Guajardo, the Respondent’s human re- sources director, that he had to cut $130,000 from the budget. Guajardo met with union organizer Sergio San- chez and Segobia, the shop steward, on May 5, to notify the Union of the coming shortfall and to begin discus- 2 During the events at issue here, Jean Miner was serving as the in- terim director of the center-based program, having previously retired from the executive director position. 3 All subsequent dates are in 2004 unless noted. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 68 sions about cost reductions. At O’Connell’s direction, Guajardo began developing his own cost-reduction plans. He began considering the savings that he could derive from merging the provider-contract and payout depart- ments. Guajardo decided that he could eliminate three positions if he merged the departments. He met with the supervisors of the departments to discuss the possible merger. He told them he would concentrate the layoffs in the provider-contract department. On May 24, the Respondent’s board approved the merger and layoff plan. However, O’Connell and Guajardo held off implement- ing Guajardo’s plan. Guajardo met with Sanchez several times during May and June to discuss the budget shortfall. On June 28, Guajardo informed Sanchez that the Respondent was planning on merging the provider-contract and payout departments and laying off Urzua, Palafox, and the least senior member of the payout department. When Sanchez raised the collective-bargaining agreement’s requirement that the Respondent use seniority in determining layoffs, Guajardo invoked the agreement’s exception for layoffs based on employees’ differing qualifications and ex- plained that Segobia was more qualified than Urzua and Palafox because she had more experience in both the provider-contract and payout departments. On June 29, Guajardo met with Palafox and Segobia to discuss the layoffs. Guajardo explained that the Respon- dent considered Segobia the most qualified of the pro- vider-contract department employees to work in the newly merged department because of her recent experi- ence in the payout department. On June 30, Guajardo met with Sanchez and Segobia to discuss the Union’s cost reduction plan. Later that day, the Respondent laid off Urzua, Palafox, and the junior payout employee. II. JUDGE’S DECISION AND EXCEPTIONS The judge found that Jean Miner’s conduct at the April 14 meeting involved violations of Section 8(a)(1). Spe- cifically, he found that Miner’s confrontation with Pala- fox about her authorship of the flyer constituted a coer- cive interrogation. In addition, he found Miner’s refer- ence to employees being lucky to have a job with the Respondent and her need “to hit something,” while dis- cussing her feelings about the union flyer, constituted a threat of reprisal for employees’ union activities. The judge also found that the Respondent violated Section 8(a)(3) and (1) by selecting employees Urzua and Pala- fox for layoff because of their support for the Union. The Respondent excepts to the judge’s findings. First, the Respondent asserts that Miner’s confrontation with Palafox at the April 14 meeting did not constitute an in- terrogation and that Miner’s statements at that meeting did not constitute threats. Second, the Respondent dis- putes that the General Counsel carried his burden of es- tablishing a prima facie case of discrimination. In addi- tion, the Respondent argues that it established that it had a legitimate, nondiscriminatory reason for choosing Ur- zua and Palafox for layoff and therefore should not be found to have violated Section 8(a)(3) and (1). III. ANALYSIS A. The 8(a)(1) Violations For the reasons stated by the judge, we find that Miner coercively interrogated Palafox at the April 14 meeting, in violation of Section 8(a)(1). However, contrary to the judge, we do not find that Jean Miner’s statements to the assembled employees at the April 14 meeting constituted unlawful threats of reprisal for the employees’ union activities. No party disputes that Miner was extremely upset with employees when she went before them. We do not believe, however, that her expression of displeas- ure crossed the line to threats of reprisal. In remarking upon the employees’ lack of education and telling them that they were lucky to have their jobs with the Respon- dent, Miner was expressing her opinion that, given the employees’ skill levels and the job market, these em- ployees were fortunate to have their jobs. Miner did not say, or even imply, that these jobs would come to an end. Cf. Mid-East Consolidation Warehouse, 247 NLRB 552, 553 (1980) (employees told they were lucky to have their jobs and that “if they didn’t like what they were receiv- ing, they could leave”; violation found solely for the lat- ter statement).4 Similarly, we do not agree with the judge that employ- ees would reasonably construe Miner’s reference to needing to hit something as a threat of reprisal. To draw the inference that employees would believe that Miner literally intended to hit them is unwarranted. Rather, 4 Our dissenting colleague’s reliance on Devon Gables Lodge & Apartments, 237 NLRB 775 (1978), and Saunders Leasing, 204 NLRB 448 (1973), is unavailing. In both cases, the Board found an unlawful threat because the employers there linked their comments that employ- ees were lucky to have their jobs to an expectation about employees’ future behavior. For example, in Devon Gables, the employer’s state- ment that a nurse was lucky to have her job was coercive when the employer also instructed the nurse to vote against the union if she val- ued her job. Similarly, in Smithers Tire, 308 NLRB 72 (1992), cited by our colleague, the Board found an objectionable threat in a union agent’s statement to an employee with a black eye that “[t]his is what happens when you cross us.” The Board found that the remark would reasonably be understood to mean that employees who crossed the union would sustain black eyes. Here, Miner did not establish a condi- tion for employees’ continued employment. Further, there was no suggestion that their “luck” would run out because of union activity. Accordingly, there is no reason for the Board to find an implied threat. Our dissenting colleague mischaracterizes our finding by asserting that we require an explicit threat in order to establish a violation of Sec. 8(a)(1). We do not. We find only that the evidence in this case does not demonstrate an unlawful threat, either implicit or explicit. CHILDREN’S SERVICES INTERNATIONAL 69 Miner was responding to a question about her mental state, and was conveying her extreme mental anguish. In short, the record does not establish that Miner threatened to take reprisals against the employees. Accordingly, we dismiss this allegation. B. The 8(a)(3) Violations We find merit in the Respondent’s exceptions to the judge’s finding that Urzua and Palafox’s layoffs violated Section 8(a)(3) and (1). The parties do not dispute that the Respondent’s need to cut costs was genuine. Nor do they deny that the Respondent’s decisions to merge two of its departments and to have the resultant layoffs were necessary for legitimate business reasons. Thus, the only question before us is whether the Respondent’s selection of Urzua and Palafox as two of the three employees to be laid off was motivated by union animus.5 Contrary to the judge, we find that the General Coun- sel failed to establish that the Respondent was unlawfully motivated in selecting Urzua and Palafox for layoff. Instead, we find that the record supports the Respon- dent’s claim that it chose Urzua and Palafox based on nondiscriminatory selection criteria. The Respondent sought to minimize training costs and disruption to the administration of the grant program. Clearly, in light of the budget cuts that necessitated the layoffs, Respon- dent’s desire to minimize training costs was legitimate. In addition, the parties do not dispute that the Respon- dent had only 2 weeks after the layoffs to effectuate the merger and process the July payout. Thus, the Respon- dent’s focus on minimizing impact on the payout func- tion was reasonable. The record shows that the Respondent’s conduct in choosing Urzua and Palafox served those goals. When Guajardo first notified the Union about the identity of the employees slated for layoff, he justified their selection by reference to their qualifications. Moreover, the Respon- dent chose for retention the employee, Segobia, whom the parties do not dispute had the most recent experience in both departments. Finally, by concentrating the lay- offs in the provider-contract department, the Respondent reasonably predicted that it would minimize its difficulty in accomplishing the July payout in a timely fashion. Moreover, we find that the evidence upon which our dissenting colleague and the judge relied fails to support a finding of union animus. First, the judge improperly relied upon a letter that Miner circulated in 2002. Al- though the letter expresses Miner’s great antipathy to- wards the Union, it does not shed light on the Respon- dent’s motive for its much-later discharge of Urzua and 5 There is no allegation that the layoff of the third employee violated the Act. Palafox. Miner wrote the letter 2 years before the deci- sion to lay off Urzua and Palafox. More importantly, despite the dissent’s conjecture to the contrary, the record fails to show that Miner had any role in the selection of Urzua and Palafox for layoff. At the time of the layoffs, Miner’s authority was limited to the center-based unit. The General Counsel provided no evidence to link Miner to the layoff selection decision. Our dissenting colleague relies on her speculation about Miner’s continuing influ- ence. She points to no record evidence that Miner was even consulted about the selection of Urzua and Palafox for layoff.6 Therefore, we find it unreasonable to attrib- ute Miner’s long-past expression of opinion concerning the Union to those of Respondent’s officials who made the layoff decision. Similarly, because Miner was not involved in the selection of Urzua and Palafox for layoff, her interrogation of Palafox does not support a finding of animus in regard to her selection for layoff. Nor do we find animus in other statements on which the judge relied. The judge found evidence of union animus in comments made by O’Connell and Guajardo around the time of the layoffs. The judge found that O’Connell, on the day of the layoff, made an apparent reference to a union rally held in April. O’Connell told union organizer Sanchez that if Sanchez were so dedi- cated to negotiating about cost-cutting measures, he would have been calling O’Connell instead of protesting at the rally with a bullhorn. The judge also found that O’Connell told Sanchez that the Union had ruined the Respondent’s reputation. Finally, the judge found union animus in Guajardo’s cryptic reference to “retaliation” when he informed Urzua of her layoff. The judge found that in response to Urzua’s request for an explanation of her layoff, Guajardo said that “the staff talked,” and he mumbled something about “retaliation.” We do not believe that these statements establish that the Respondent’s layoff selections were motivated by union animus. The General Counsel has not alleged that any of these statements constitute unlawful threats. In- deed, our colleague acknowledges that Miner was ex- pressing her “views regarding the Union” and her “feel- ings about the Union.” Section 8(c) provides that such views and opinions are not unlawful and are not “evi- dence of unlawful conduct under any of the provisions of this Act.” Although there is some extant Board law 6 Our dissenting colleague presumes, without record support, that Miner participated in the board’s decision concerning the layoffs, which was made at its May 24 meeting. The record shows no such participation. Moreover, the record does not show that the board mem- bers discussed the selection of Urzua and Palafox particularly for lay- off, or even the need for layoffs generally, but shows instead, as the judge found, that they voted on the basis of a memorandum drafted by Guajardo. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 70 which uses such expressions of views to support an 8(a)(3) allegation, we are clearly not required to take that approach, and we decline to do so here. Further, the statements are all ambiguous, especially Guajardo’s statement to Urzua at the time of her layoff. They do not express unequivocal or even strong opposition to the Union. Moreover, we find nothing in the statements that suggests that the Respondent would be motivated to take unlawful action.7 Our colleague appears to link the decision to conduct a layoff to the union activity of holding a rally. However, even the General Counsel does not allege that the layoff decision itself was unlawful. The April 15 rally was called to protest perceived inconsistencies in administer- ing rates for providers and the failure to give employees a raise. Concededly, O’Connell referred to the rally on the day of the layoff. However, at most, O’Connell’s suggestion was that the foregoing matters should have been negotiated rather than becoming the subject of a rally. That does not establish that the layoff was causally related to the rally. To the contrary, the layoff was caused by a budget shortfall that was forecasted in late April and was explained to the Union on May 5. Thus, unlike our colleague, we find that O’Connell’s statement to Sanchez neither implies a causal connection between the rally and the layoff nor reveals animus on the part of O’Connell. Finally, the judge further supports his conclusion that the Respondent had an unlawful motivation for the lay- offs by finding pretextual the Respondent’s proffered explanation for selecting Urzua and Palafox for layoff. Specifically, he found that neither evidence nor logic supports the Respondent’s claim that it was necessary to retain more payout department employees in order to minimize training costs and to ensure that the Respon- dent would be able to complete the July payout process. The Respondent counters that the evidence demonstrates that its concerns about training and the July payout were genuine. We agree with the Respondent. We emphasize that it is not our objective to determine whether the Re- spondent’s choice of Urzua and Palafox was the correct decision or that the Respondent used the best decision- making process. The Respondent may make its layoff decision on any basis it chooses, good, bad, or indiffer- ent—as long as it is not an unlawful basis. We express no opinion as to whether the Respondent should have retained Urzua and Palafox or should have been so con- cerned about retraining costs and accomplishing the July payout. The wisdom of the Respondent’s decision is 7 Our dissenting colleague concedes that these statements are am- biguous, but still argues that we should infer that they demonstrate “significant” animus. We decline to make that leap. immaterial. We are concerned only with discerning the sincerity of the Respondent’s contention that the decision was not motivated by union animus. As discussed above, we do not find the Respondent’s proffered justification for its choice of Urzua and Palafox to be pretextual. Indeed, we find nothing inconsistent between the choice of Urzua and Palafox for layoff and the Respondent’s stated goals. The judge found that if the Respondent were sincere in its desire to minimize training and facilitate the July payout, it would have re- tained Urzua because of her long experience in both the provider-contract and payout departments. The record shows, however, that Urzua had not performed payout department duties for a number of years.8 Segobia, in contrast, had much more recent payout department ex- perience, having transferred from that department into the provider-contract department just over a year prior to the merger. Thus, we cannot conclude that the Respondent was unlawfully motivated in determining that it could mini- mize its training costs by retaining only Segobia from the provider-contract department. If it had chosen two em- ployees from the payout department for layoff and, in- stead, retained both Segobia and Urzua, the Respon- dent’s training costs likely would have been higher. Whether it retained all payout employees but one or all but two, the Respondent still would have had to conduct department-wide training for payout employees in how to perform provider-contract department duties. If it retained only Segobia from the provider-contract de- partment, however, the Respondent’s training in payout duties would have been minimal, in light of Segobia’s recent payout experience. In contrast, if the Respondent retained both Segobia and Urzua, it would have had to provide both extensive provider-contract training for the payout department employees, and extensive payout training for Urzua. Accordingly, retention of Urzua in place of another junior payout department employee would have increased the Respondent’s training costs.9 We also find unpersuasive the judge’s reliance on the Respondent’s failure to investigate the payout and pro- vider-contract employees’ relative qualifications prior to making its layoff selections. In light of its stated goals, the Respondent clearly valued very highly recent experi- ence in payout department duties. No investigation was 8 Palafox had no exceptions in the payout department. 9 The Respondent’s calculus is further supported by Supervisor Al- derete’s testimony that it would be easier to train payout employees to do provider-contract work than to train provider-contract employees to do payout work. CHILDREN’S SERVICES INTERNATIONAL 71 necessary to determine employees’ relative payout ex- perience.10 Our dissenting colleague’s assertion that the Respon- dent ignored Urzua’s and Palafox’s qualifications is based on her own definition of the relevant qualifica- tions. We do not dispute that Urzua and Palafox were good employees. The Respondent, however, in making difficult budgetary decisions, chose to value more highly skills that they did not possess, such as recent payout department experience. As discussed above, our role is not to assess whether the Respondent made a good deci- sion to let go well-performing employees. By the Re- spondent’s definition of the qualifications it needed, Ur- zua and Palafox were less qualified. We find no basis in the record for concluding, as our colleague does, that the measure of qualifications applied by the Respondent was artificial and designed to yield results desired by the Re- spondent. We find that the Respondent’s definition was not so unreasonable as to establish pretext. We reject our dissenting colleague’s assertion that a finding of pretext is compelled by the chronology of the Respondent’s decisionmaking process. Again, the dis- sent speculates as to the Respondent’s motivation with- out record support. The uncontradicted testimony shows that the Respondent developed its layoff plan at the same time it was negotiating with the Union over the impact of the budget cuts, not because of bad faith, but because of the imperative that it have a cost-cutting plan in place by July 1. The July 1 deadline was externally imposed. If the negotiations with the Union were not concluded by July 1, the Respondent had to have a comprehensive means of cutting the budget in place. Accordingly, the Respondent followed the prudent path of engaging in parallel processes. We note that there is no allegation before us that the Respondent violated Section 8(a)(5) by implementing its layoff plan or by acting in bad faith in dealing with the Union about it. Finally, we also note that Segobia, the steward and most prominent union activist, was not laid off, and a third employee, not shown to be a union activist, was laid off. Accordingly, we find that the record does not support a finding that union animus motivated the Respondent’s selection of Urzua and Palafox for layoff. Therefore, we dismiss the allegations that the Respondent violated Sec- tion 8(a)(3) and (1). 10 The Respondent’s decision to retain at least one provider-contract department employee is not inconsistent with its valuing of recent payout department experience. It was reasonable for the Respondent not to want to lose all institutional knowledge of the provider-contract department duties. 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, Children’s Services International, Inc., Salinas, California, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Cease and desist from (a) Unlawfully interrogating employees about their un- ion activities. (b) 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 after service by the Region, post at its Salinas, California facilities copies of the attached notice marked “Appendix.”11 Copies of the notice, on forms provided by the Regional Director for Region 32, after being signed by the Respondent’s authorized repre- sentative, shall be posted for 60 consecutive days in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure the notices are not altered, defaced, or covered by any other mate- rial. In the event that during the pendency of these pro- ceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent shall duplicate and mail, at its own expense, a copy of the attached notice to all current employees and former employees employed by the Respondent at any time since April 14, 2004. (b) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region at- testing to the steps Respondent has taken to comply. MEMBER LIEBMAN, dissenting in part. Contrary to the majority, I would adopt the judge’s reasonable and well-founded conclusions that: (1) Jean Miner unlawfully threatened the Respondent’s employ- ees with the loss of their jobs in reprisal for their union activities; and (2) employees Aurora Urzua and Griselda Palafox were unlawfully selected for layoff because of their union activities.1 11 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 Na- tional 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.” 1 I join the majority in finding that Jean Miner unlawfully interro- gated employee Griselda Palafox regarding her participation in the DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 72 I. MINER’S THREAT On April 14, 2004,2 Jean Miner held a mandatory meeting with the Respondent’s administrative employ- ees, to respond to a union flyer that she perceived as a personal attack. At the start of that meeting, Miner an- grily confronted employee Palafox and unlawfully inter- rogated her about her involvement in creating the flyer. Afterward, Miner was so upset that she was visibly shak- ing, and she told an employee that she “just needed to hit something.” It was in this context of anger and frustra- tion—emotions generated directly by the employees’ union activities—that Miner told the employees that she had looked through their personnel files, that she knew they were uneducated, and that she believed that working for the Respondent was the best job they were ever going to have and that they were lucky to have those jobs.3 In view of Miner’s obvious fury about the union flyer and her angry verbal confrontation of an employee she perceived as being involved in making the flyer, a rea- sonable employee could—and likely would—have un- derstood Miner’s statements as warnings that, by engag- ing in union activity, they risked having to look for other, likely inferior, employment. See Devon Gables Lodge & Apartments, 237 NLRB 775, 784 (1978) (finding unlaw- ful threat of discharge based on union support where supervisor told nurses aide that nurses aides were un- skilled workers, that anyone could perform their work, that they were lucky to have their jobs, and that if she valued her job, she would vote against the union); see also Saunders Leasing System, 204 NLRB 448, 452–453 (1973) (“clear implication” of supervisor’s statement that employee was lucky to have a job with employer was that, if employee testified unfavorably to employer in Board hearing, employer would be less tolerant of em- ployee’s misconduct than in the past).4 creation of a flyer that was critical of Miner. I also join the majority in finding that Miner’s statement that she “just needed to hit something” did not constitute an unlawful threat of reprisal against the employees, because a reasonable employee would not conclude that Miner, by this statement, was threatening a physical assault. 2 All dates are in 2004 unless otherwise indicated. 3 The Respondent characterizes Miner’s comments as compliments to the employees for recognizing the importance of education and the value of the Respondent’s work. Given the context in which Miner’s statements were made, that positive spin is implausible. 4 See also Mid-East Consolidation Warehouse, 247 NLRB 552 (1980). The majority’s effort to distinguish that case is unavailing. The Board there addressed the employer’s statements that the employ- ees were lucky to have their jobs and that employees who did not like their wages should leave. Contrary to the majority’s suggestion, the Board neither stated nor implied that the latter statement was essential to its finding that the employer unlawfully threatened reprisal. Rather, the latter statement provided context supporting the employees’ reason- able perceptions that the statements were threats. The timing and con- text of Miner’s statements in this case support a similar conclusion. In finding that Miner’s April 14 statements did not constitute threats of reprisal, the majority concludes that her remarks did not cross the line to threats of reprisal because Miner did not say or imply that the employees’ jobs would come to an end. But the Board’s test for whether a statement constitutes an unlawful threat de- pends not only on the words of the speaker, but also on the reasonable inferences that an employee can draw from the statements, in view of the circumstances.5 In the circumstances here, including Miner’s obvious anger, the explicit threat the majority finds lacking was simply unnecessary. II. URZUA AND PALAFOX’S LAYOFFS Contrary to the majority, I would also adopt the judge’s conclusion that the Respondent unlawfully se- lected Aurora Urzua and Griselda Palafox for layoff, based on their union activities. The Respondent’s anti- union animus was amply demonstrated, and the Respon- dent’s asserted reasons for choosing Urzua and Palafox are pretextual,6 thus supporting a finding that the layoff selections were based on an unlawful reason.7 A. Antiunion Animus The majority finds that the evidence of antiunion ani- mus presented by the General Counsel is stale and unre- lated to the layoff selections. I disagree, and I would The majority also fails to persuasively distinguish Devon Gables and Saunders Leasing, supra. Contrary to the majority’s suggestion, a threat, whether express or implied, need not be linked to a stated expec- tation about employees’ future behavior. The speaker’s opposition to particular conduct communicates clearly, if implicitly, what behavior the speaker seeks from the threatened individual. See, e.g., Smithers Tire, 308 NLRB 72 (1992). There, the Board found an unlawful threat in the statement, “This is what happens when you cross us.” Despite the absence of any express linkage to future behavior, a reasonable employee would surely understand the implied corollary message, “Don’t cross us again.” Similarly, here, in the context of Miner’s un- mistakable anger at employees’ union activities, reasonable employees could understand the implication that their continued “luck” in em- ployment depended on ceasing their involvement in union activities. 5 See, e.g., Concepts & Designs, Inc., 318 NLRB 948, 954 (1995) (threats “need not be explicit if the language used by the employer or his representative can reasonably b[e] construed as threatening”). 6 There is no claim that the simultaneous layoff of Angie Amador, the most junior member of the payout department, was unlawful. 7 See Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel meets his or her initial evidentiary burden by estab- lishing that: (1) the employee engaged in protected activity; (2) the employer knew of that activity; and (3) the employer demonstrated animus toward that activity. If the General Counsel makes such a showing, the burden of persuasion shifts to the employer “to demon- strate that that same action would have taken place even in the absence of the protected conduct.” See Webasto Sunroofs, Inc., 342 NLRB 1222, 1224–1225 (2004). There is no dispute that Urzua and Palafox engaged in union activities and that the Respondent was aware of those activities. CHILDREN’S SERVICES INTERNATIONAL 73 find the evidence of animus by Jean Miner and other managers sufficient to meet the General Counsel’s initial burden under Wright Line. First, Jean Miner’s antiunion animus cannot be doubted. In a letter distributed in 2002, just after the employees voted for union representation, Miner referred to union supporters as a “gang . . . driven by mob mental- ity” and accused them of “alcoholism, domestic vio- lence, limited education, social isolation, emotional dis- ability, and a value system that does not recognize the boundaries of law nor the rights of others.” She de- scribed union supporters as “instigators not feeling bound by truth,” “malcontents who use their talents to create chaos,” and “members of the new ‘blackguard.’” Significantly, in this letter Miner also accused “self- serving (more highly compensated but disgruntled office workers)” of “derail[ing] the [Respondent] and . . . de- priv[ing] many of the benefits it offered.”8 Urzua was the most senior and most highly paid office worker at the time, and the judge rightly found that Urzua was among the employees Miner’s letter referred to.9 Although Miner’s letter to the employees was 2 years old at the time of the layoffs, the evidence showed that Miner’s animus toward the Union had not changed in the intervening time. Indeed, in her hearing testimony, Miner essentially reaffirmed her previously expressed views regarding the Union, stating that she remained angry about the union supporters’ conduct, including posting union flyers.10 Miner’s conduct at the April 14 meeting, in turn, dem- onstrates animus concurrent with the layoffs. As dis- cussed above, I would find that Miner unlawfully threat- ened the employees with reprisals for their union activ- ity. Nevertheless, as the majority acknowledges, we can find that these statements demonstrate animus, even without finding them independently coercive. The ma- 8 In her letter, Miner also predicted that “[u]nder the influence of people who lead by yelling through a bullhorn, marching in the street, keying cars, threatening others, making false accusations, creating a media circus, and preaching hate rather than engaging in cooperative problem solving, the [Respondent] will ultimately fail.” She accused the Union and its supporters of “utiliz[ing] many of the same tactics” as “[t]he Red Guards of communist China and the USSR.” In addition, Miner opened her letter by defining “worker” as “a person, animal, or thing that works . . . or any of a class of sterile or sexually imperfect female ants, bees, etc. . . .” and stated that she “had hoped [the employ- ees] would opt to be ‘administrators’ or ‘teachers,’ [rather than ‘work- ers,’] but . . . your choice.” 9 Moreover, Miner testified that she hand delivered the letter to the individuals she was referring to. Urzua testified that Miner threw the letter at her. 10 The majority contends that Miner’s “views and opinions” about the Union are protected by Sec. 8(c). However, Miner’s statements are unmistakable evidence of antiunion animus, and should be recognized as such. jority errs in choosing not to do so, given the undisputed fact that Miner’s harsh and angry statements were prompted by the employees’ union activities.11 Although the majority contends that Miner was unin- volved in the layoff decision, this is not clear: Miner attended the board of directors meeting at which the lay- off decision was approved.12 The majority’s assumption that Miner’s own animus did not infect the decision- making process is implausible.13 Second, the evidence demonstrated the animus of indi- viduals more openly involved in the layoff decisions than Miner. Timothy O’Connell—Miner’s son-in-law, the Respondent’s executive director, and a primary decision- maker in the layoffs—told Union Representative Sergio Sanchez, on the day of the layoffs, that, if Sanchez was so willing to negotiate about how to respond to the budget shortfall, he should have been calling O’Connell, rather than protesting with a bullhorn (at the union rally on April 15). By this statement, O’Connell linked the layoffs that he knew were imminent with the Union’s protected conduct of holding a rally.14 Also, O’Connell—apparently referring to the news coverage of the union rally—accused Sanchez and the Union of ruin- ing the Respondent’s reputation. Respondent’s human resources manager, Ruben Gua- jardo, also demonstrated antiunion animus. When Urzua asked Guajardo why 80 percent of his salary was allo- cated to the administrative unit, even though it was only 11 Even accepting the majority’s choice not to find evidence of ani- mus in statements that do not violate Sec. 8(a)(1), the majority should find animus based on Miner’s unlawful interrogation of Palafox, during that same meeting, regarding Palafox’s creation of the union flyer. 12 Before she was shown the minutes reflecting her attendance at this meeting, Miner claimed that she had “no inkling” that the Respondent was planning an organizational restructuring and that she found out about it only when it happened. The judge neither credited nor discred- ited these statements. 13 Miner was the Respondent’s founder, continued to supervise many of its employees, was the mother-in-law of the executive director, and was able to order employees outside her official supervision to attend a mandatory meeting. Thus, while Miner’s formal authority at the rele- vant times may have been limited to the center-based unit, as the major- ity finds, her actual power in the Respondent’s management clearly extended farther. O’Connell’s refusal even to apologize for his mother- in-law’s April 14 conduct, let alone to sanction her, further demon- strates Miner’s continued power in the Respondent’s administrative office. 14 O’Connell’s remark appears to suggest that the Union’s protected conduct reduced the chance of saving unit employees’ jobs. Contrary to the majority’s implication, I do not contend that the Respondent’s decision to reduce its costs via layoffs was caused by the employees’ rally; I simply note that O’Connell suggested such a causal connection, which implicates his own antiunion animus. At the time of the rally, the Respondent had not yet notified the Union even that it anticipated a budget shortfall, let alone that there would be layoffs; O’Connell could not seriously have expected Sanchez to negotiate about a problem of which he had not been informed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 74 one-fourth the size of the center-based unit, Guajardo responded that there were “problems” in the administra- tive unit and that it was more “difficult.” Guajardo also told Urzua that “people talk” and muttered something about “retaliation” when Urzua asked why she was se- lected for layoff. When Urzua asked what he meant by “retaliation,” Guajardo waved his hand dismissively and did not answer. While Guajardo’s comments may be ambiguous standing alone, in context they support the conclusion that the Respondent’s decisionmakers bore significant animus toward the Union and its supporters. B. Pretext The majority also errs in reversing the judge’s finding that the Respondent’s asserted reasons for selecting Ur- zua and Palafox for layoff were pretextual. Substantially for the reasons stated by the judge, I would adopt his findings that the pretextual nature of the Respondent’s rationale was shown by: (1) the Respondent’s failure to consult Supervisors Alderete and Diaz regarding the rela- tive qualifications of the various provider-contract and payout employees; (2) its disregard of Palafox’s recent and highly positive employee appraisals; and (3) its dis- regard of Urzua’s experience performing (for almost 20 years, some of the time singlehandedly), as well as su- pervising, the payout employees’ work. In sum, the Re- spondent’s definition of the employees’ “qualifications” as only their recent experience working in the payout department seems designed simply to justify laying off Urzua and Palafox despite their seniority.15 Unlike the majority, I am not persuaded by the Re- spondent’s claim that its selection of employees for lay- off was targeted to reduce training costs and to ensure that the July payout was completed on time. Until mid- August, Urzua and Palafox’s duties were performed by Supervisors Alderete and Diaz. There is no evidence suggesting that Alderete and Diaz would have been less able to substitute for any other (presumably less experi- enced) employees the Respondent might have laid off instead of Urzua and Palafox. Moreover, Roxanne Se- gobia, the only provider-contracts employee who was not laid off, testified that her training to perform payout de- partment work lasted a mere 60–90 minutes, and that Urzua and Palafox could have been trained just as quickly.16 15 I do not, as the majority contends, apply my own definition of the relevant qualifications; I merely agree with the judge that the Respon- dent’s definition was structured narrowly and artificially to justify the result sought. Thus, contrary to the majority, I do find that the Respon- dent’s definition is so unreasonable as to establish pretext. 16 I agree with the judge that the Respondent’s retention of Segobia, despite her union activity, does not counter other evidence of the Re- spondent’s unlawful motive in laying off Urzua and Palafox. A Re- In addition, the Respondent’s determined effort to pre- vent the Union from knowing of its plan until after the layoffs had occurred is strong evidence of its unlawful motive. As the judge describes, the Respondent carried out its entire process—deciding to merge the provider- contract and payout departments; consulting with Super- visors Alderete and Diaz about the merger; deciding that Urzua and Palafox, the two most experienced provider- contract employees (and Amador, the least experienced payout employee) would be laid off; and obtaining board of directors approval for the plan—while simultaneously pretending to negotiate with the Union about its plans, as if the decisions had not already been made.17 Only on June 28 did Guajardo inform Sanchez that the Respondent was “thinking about” merging the depart- ments and undertaking the intended layoffs—layoffs that had been formally approved by the board of directors over a month earlier. When Palafox and Segobia asked Guajardo, on June 29, whether it was true that Urzua and Palafox would be laid off, Guajardo denied that layoffs were imminent. On the afternoon of June 30, when Gua- jardo and O’Connell met with Sanchez and Segobia (purportedly to discuss the Union’s proposal regarding the budget shortfall), Guajardo and O’Connell still did not notify the Union that the merger-and-layoff plan would be implemented. O’Connell even stated at the close of that meeting that he would consider the Union’s plan. The layoffs, however, were carried out later that same afternoon, without notice to the Union that a deci- sion had been reached.18 III. CONCLUSION The majority’s conclusion that the facts of this case, as found by the judge, add up to nothing more than a single unlawful interrogation is simply untenable. I would find, as the judge did, that the Respondent violated Section 8(a)(1) when Miner implicitly threatened the administra- spondent need not discriminate against all prounion employees in order for the Board to find that it discriminated against some. See, e.g., Alli- ance Rubber Co., 286 NLRB 645, 647 (1987). 17 The majority contends that I “speculate[] as to the Respondent’s motive without record support.” As Wright Line recognizes, direct evidence of the employer’s unlawful motive is rarely available, and our analysis usually depends on reasonable inferences drawn from circum- stantial evidence. Id., 251 NLRB 1083, 1083–1084 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). I find am- ple evidence of the Respondent’s bad faith—and thus its unlawful motivation—not, as the majority implies, in its efforts to comply with the externally imposed July 1 cost-cutting deadline, but in its deliberate concealment of its plans from the Union until the last possible moment. 18 The laid-off employees were provided with final paychecks that afternoon. Such paychecks generally must be prepared in advance, a fact that further indicates that the Respondent never intended to con- sider the Union’s proposal or to be swayed from its settled plan to lay off Urzua, Palafox, and Amador. CHILDREN’S SERVICES INTERNATIONAL 75 tive unit employees on April 14, and that the Respondent violated Section 8(a)(3) and (1) by selecting Aurora Ur- zua and Griselda Palafox for layoff because of their un- ion activity. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT unlawfully interrogate employees about their union activities. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights listed above. CHILDREN’S SERVICES INTERNATIONAL, INC. Amy L. Berbower, Esq., for the General Counsel. Robert J. Wilger, Esq. and Adam J. Fiss, Esq. (Littler Mendel- son), of San Jose, California, for the Respondent. Antonio Ruiz, Esq. (Weinberg, Roger & Rosenfeld), of Oakland, California, for the Union. DECISION STATEMENT OF THE CASE JAY R. POLLACK, Administrative Law Judge. I heard this case in trial at Oakland, California, on January 11 through 14, 2005. On July 9, 2004, Service Employees International Un- ion, Local 817, AFL–CIO (the Union) filed the original charge alleging that Children’s Services International, Inc. (Respon- dent) committed certain violations of Section 8(a)(1) and (5) of the National Labor Relations Act (the Act). The Union filed the first amended charge on August 11, 2004. On September 28, 2004, the Union filed its second amended charge. On Oc- tober 28, 2004, the Regional Director for Region 32 of the Na- tional Labor Relations Board (the Board) issued a complaint and notice of hearing against Respondent, alleging that Re- spondent violated Section 8(a)(1) and (3) of the Act. Respon- dent filed a timely answer to the complaint denying all wrong- doing. The parties have been afforded full opportunity to appear, to introduce relevant evidence, to examine and cross-examine witnesses, and to file briefs. Upon the entire record, from my observation of the demeanor of the witnesses1 and having con- sidered the posthearing briefs of the parties, I make the follow- ing FINDINGS OF FACT I. JURISDICTION The Employer is a California nonprofit corporation with fa- cilities in Gonzalez, Greenfield, Marina, Salinas, and Pajaro, California, engaged in providing childcare and educational services. During the 12 months prior to issuance of the com- plaint, the Employer, in the course and conduct of its business, received gross revenues in excess of $250,000 and directly received revenues in excess of $100,000 from outside the State of California. Accordingly, Respondent admits and I find that the Employer is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent admits and I find that at all times material Re- spondent has been a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts 1. Background and issues Respondent and the Union are parties to a collective- bargaining agreement, effective by its terms from October 1, 2002, to September 30, 2004. The agreement covers two units of the Employer’s employees; the center-base unit and the ad- ministrative unit. The agreement includes a union-security clause requiring unit employees, after a lawful grace period, to become and remain members of the Union. On November 14, 2003, a child care center-based employee filed a petition in Case 32–UD–207 seeking to withdraw the authority of Respondent and the Union to enforce the union- security clause. On April 1, 2004, an election was held under the supervision of the Regional Director for Region 32. On April 12, 2004, the Regional Director issued a certification of results of election certifying that a majority of the eligible em- ployees did not vote to withdraw the authority of the Union and Employer to enforce the lawful union-security clause. On May 28, 2004, I issued a decision in Case 32–CB–5713–1 finding that the Union had violated Section 8(b)(1)(A) of the Act by announcing and making monetary payments to employees in order to restrain and coerce employees during the pendency of a deauthorization petition in Case 32–UD–207. In the absence of exceptions, the Board adopted my decision. On June 30, 2004, Respondent, faced with budget cuts, merged two of its administrative departments, its provider- contracts department and its provider-payout department, and laid off three employees. Although the General Counsel does 1 The credibility resolutions herein have been derived from a review of the entire testimonial record and exhibits, with due regard for the logic of probability, the demeanor of the witnesses, and the teachings of NLRB v. Walton Mfg. Co., 369 U.S. 404, 408 (1962). As to those wit- nesses testifying in contradiction to the findings herein, their testimony has been discredited, either as having been in conflict with credited documentary or testimonial evidence or because it was in and of itself incredible and unworthy of belief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 76 not contest Respondent’s decision to merge departments or to layoff employees, the General Counsel alleges that Respondent selected senior and experienced employees, Aurora Urzua and Griselda Palafox, for layoff because of their union and/or pro- tected concerted activities. The General Counsel contends that Respondent selected Palafox and Urzua for layoff by “evaluat- ing” their qualifications under such artificially limited criteria that it was clearly predetermined that Urzua and Palafox would be laid off. Moreover, the evidence shows that the work that they performed for 23 and 6 years respectively was assigned to less senior and untrained employees following the layoff. Re- spondent contends that it choose these employees for lay off based on qualifications. 2. The administrative unit The “administrative unit,” the unit at issue herein, encom- passes four departments: the provider-contracts department, the eligibility department, the provider-payout department, and the finance department.2 The provider-contract department em- ployed three provider-contract specialist (PCS) employees, Aurora Urzua, Griselda Palafox, and Roxanne Segobia. These PCS employees were responsible for registering independent childcare providers into Respondent’s alternative payment pro- gram and negotiating contracts under which the providers would be reimbursed for the care of children in eligible fami- lies. The payout department employed approximately seven payout-specialist employees who were responsible for calculat- ing and processing monthly payments to the independent child- care providers. The eligibility department employed approxi- mately 10 eligibility specialists who were responsible for en- rolling low-income families eligible for subsidized childcare into Respondent’s program. The finance department includes a financial and information-systems specialist and an accounts- receivable specialist. The unit also includes one receptionist. Prior to the June 30 layoffs at issue herein, Sylvia Alderete supervised the PCS and eligibility employees and Pat Diaz supervised the payout employees. The PCS employees were responsible for enrolling new pro- viders to the alternative payment program. They also main- tained the provider files for Respondent’s more than 600 differ- ent providers enrolled in the program, including licensed day- care providers, exempt providers, private center programs, schools, and churches. PCS employees executed contracts with the providers on behalf of Respondent and established separate rate sheets for each provider, which included different rates according to a child’s age, special needs, premiums for after hours and weekend care, and a parent contribution schedule, in certain circumstances. When executing provider-contracts, PCS employees were responsible for explaining to the provid- ers all the rules, regulations and procedures (maintained by Respondent and the State of California) that apply to the alter- native-provider program, and must obtain the mandated docu- 2 As mentioned earlier, Respondent operates various childcare cen- ters. The employees at those childcare centers are represented by the Union in a separate unit. There are approximately 100 employees in the center-based unit. mentation for the provider files.3 PCS employees also ex- plained Respondent’s payment process and instructed providers how to fill out and calculate timesheets for reimbursement. PCS employees assisted providers after the initial enrollment by executing new contracts when rates changed, updated pro- vider information, verified provider income to outside agencies, and responded to provider inquiries about rates, regulations, and payment problems. Prior to the instant layoffs, Respondent’s payout department processed the provider payments for care provided to eligible families under the alternative-provider program. Each month, the payout employees mailed blank timesheets to the providers. The providers completed the timesheets and submitted them for payment during the first 3 days of each month. The payout employees reviewed the completed timesheets, verified the rates claimed by the provider, manually calculated payment due using a 10-key calculator and attached the 10-key tape to the timesheet to verify the calculation for auditing purposes. The calculated amounts were then entered into Respondent’s NOHO software program.4 The calculated and verified time- sheets were forwarded to the financial department, which prints the providers’ checks that are due the 15th of each month. After payment is mailed out each month, payout employees process late timecards and complete an in-house report, which is used to doublecheck the payment calculations. The PCS employees routinely assisted payout employees during the processing of provider payout to determine rates and calculate provider payment. PCS employees also regularly assisted pay- out processing of payment to rectify over and under payments reported by providers. Prior to the layoffs, the PCS employees kept the provider-contracts and files. This required the payout employees to go to the PCS offices to check provider-contracts and files. This process was not efficient and was improved by the merger of the two departments at the end of June 2004. At the time of the June 30 layoffs, Urzua was Respondent’s most senior employee and had been working in the alternative- provider program for over 23 years. Prior to 1999, Urzua su- pervised all facets of the alternative-provider program. In 1999, Timothy O’Connell, then Respondent’s executive direc- tor, divided the program into the provider-contracts, payout, and eligibility departments. Prior to this change Urzua was responsible for all aspects of the alternative provider program including enrolling providers, enrolling eligible families, and processing payouts to providers. After the change in 1999, Urzua continued to supervise the senior provider-contract em- ployees until Diaz was promoted to supervise the department. 3 The State regulations regarding payment for the independent child- care providers often changed. When there were changes in the State regulations, Respondent’s alternative-provider program employees were required to make changes accordingly. Urzua and the supervisors attended training sessions in order to learn about the changes in the State regulations. Urzua and the supervisors would in turn advise the employees in the provider-contracts and payout departments about these changes. 4 Respondent intends to utilize the NOHO software program to cal- culate payouts to providers. However, at the times relevant herein, Respondent’s employees were still calculating the payouts with a 10- key calculator. CHILDREN’S SERVICES INTERNATIONAL 77 During her employment with Respondent, Urzua trained many alternative provider program employees, including current Su- pervisors Diaz and Alderete, and both PCS employees Palafox and Roxanne Segobia. Palafox worked for Respondent as a PCS employee since March 1999. She was the fourth most senior employee in the administrative unit. Palafox’s last appraisal praised her knowl- edge of work procedure and regulations and the quality and quantity of her work. Palafox was senior to Segobia, the third PCS employee. Segobia began working for Respondent in September 2001 as a payout specialist. In March 2003, Segobia became a pro- vider-contract specialist. After the layoffs of June 30, Segobia worked in the payout department performing provider-contract and payout work. Urzua, Palafox, and Segobia were all known union activists. Urzua was one of four employees on the Union’s initial orga- nizing committee. Palafox served as a union observer during the representation election in 2002. Both Urzua and Palafox were members of the Union’s negotiation committee and repre- sented the administrative employees in negotiations for the collective-bargaining agreement. Urzua and Palafox were among the union representatives who executed the bargaining agreement on behalf of the Union. After the bargaining agreement became effective, Urzua and Palafox negotiated with Respondent’s management concerning various issues. Both employees also brought issues before the public meetings of Respondent’s board of directors. In March 2004, Segobia became the Union’s shop steward for the administrative unit. Even after Segobia became stew- ard, Urzua and Palafox continued to assist employees with personnel and contract issues. Urzua attended two meetings with management in June 2004, to discuss Respondent’s budg- etary problems. During a meeting on June 8, 2004, Urzua questioned Ruben Guajardo, Respondent’s human resources manager, regarding the allocation of 80 percent of his salary to the administrative unit. Urzua pointed out that the center-based unit had approximately 100 employees and the administrative unit had only 23 employees. Guajardo replied that there were “problems” in the administrative unit and that unit was more “difficult.” 3. Jean Miner’s meeting with the administrative unit After the filing of the deauthorization petition on November 14, 2003, the Union campaigned heavily to defeat the petition. The Union’s campaign included at least one flyer, which was extremely critical of Jean Miner, Respondent’s founder, and then interim director of center-based programs. On April 14, Jean Miner held a meeting with Respondent’s administrative employees to address her concerns with a union flyer. The flyer complained that Respondent had not granted the center-based employees an expected $.25-per-hour wage increase. The flyer contained a picture of Miner’s car and home and contended that Respondent could have paid the em- ployees the raise but for Miner’s alleged greed. Although Respondent claims that Miner had no authority over the administrative employees, she required all administra- tive employees to attend the meeting during worktime.5 Pala- fox was busy with a client and Miner delayed the meeting until Palafox could attend. Miner started the meeting by stating that it would be a brief meeting because only she would be speak- ing. Miner passed out the union flyer stating that the flyer was what the employees were paying the Union for. When Miner attempted to give Palafox a copy of the flyer, Palafox said that she had already seen it. Miner replied, “[o]f course you did because you created it.” Palafox answered that she had not and that Miner should talk to the Union. Miner then responded, “You pay the Union.” Miner told the employees that she had gone through their personnel files and that the employees were uneducated. Miner said the employees had the best jobs that they ever had and were lucky to have their jobs. Segobia asked Miner if the meet- ing was related to her work and if she could be excused. Miner told Segobia that she could be excused. As Segobia left the meeting, Urzua and Palafox went with her. As the three em- ployees were leaving, Miner declared, “There go your leaders.” Miner also said, “I’ll see you tomorrow at the rally.”6 Miner then explained to the employees that her car and house were already paid for and that she was volunteering for Respondent until a permanent director could be found. Miner was visibly shaken and an employee questioned her about it. Miner an- swered that she just “needed to hit something.”7 This was not the first time that Miner expressed extreme animus against the Union and its adherents. In 2002, Miner distributed a letter in which she referred to union supporters as a gang driven by mob mentality. She accused them of “alco- holism, domestic violence, limited education, social isolation, emotional disability, and a value system that does not recognize the boundaries of law nor the rights of others.” She stated inter alia, “It is most unfornuate that the self-serving (more highly compensated but disgruntled office workers) have derailed the organization [Respondent] and will deprive many of the bene- fits it offered.” Urzua was Respondent’s most senior and high- est paid office worker at that time. It is clear that Urzua was included among the employees that Miner was accusing of “creating chaos.” At the hearing, Miner reaffirmed the views expressed in her 2002 letter. On April 15, the day after Miner’s meeting with the adminis- trative unit employees, employee Leticia Caldera filed a griev- ance complaining about Miner’s intimidating and threatening behavior. Seventeen employees, including Urzua, Palafox, and Segobia, signed the grievance. On April 26, Timothy O’Connell,8 then Respondent’s executive director, responded that no apology would be forthcoming and that Miner would 5 Although the deauthorization petition and campaign concerned the center-based unit, Miner did not hold any meetings with the center- based employees to complain about the Union’s flyer. 6 The Union had planned a rally at Respondent’s offices to be held the next day. 7 Miner said that she facetiously stated that she needed to hit some- thing. She explained that at the childcare centers, children are told they can release their frustrations by hitting an inanimate object. 8 O’Connell is Miner’s son-in-law. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 78 leave Respondent’s employ at the end of April.9 Twelve em- ployees, including Palafox, responded in writing that O’Connell’s answer was not adequate. On Thursday, April 15, Urzua and Palafox participated in a union rally after work in which providers and employees rallied to protest what they perceived as Respondent’s inconsistent application of provider rates and the failure of Respondent to grant wage increases to the center-based employees. The next day, a local newspaper carried a story about the rally and pub- lished a picture that showed Palafox carrying a picket sign stat- ing “Management Must Resign Now.” Urzua’s husband was also shown in the newspaper photograph holding a sign, which read “Jean Miner The Intimidator Must Go.” A local television station also videotaped the rally. The videotape, which was aired often on local public television, included an interview with Palafox in which she criticized Respondent and Jean Miner. 4. The layoffs of Urzua and Palafox On May 5, O’Connell and Guajardo met with union organ- izer Sergio Sanchez and Segobia to discuss Respondent’s an- ticipated budget shortfall. During the meeting, Guajardo noti- fied the Union of Respondent’s expected budgetary shortfall and asked the Union to “start thinking” about cost reductions in the administrative unit. At this meeting, there was no discus- sion of layoffs. Thereafter, O’Connell and Guajardo began considering plans to cut $130,000 from the administrative budget. They focused on merging the provider-contract department and the payout department with the resultant layoff of three employees. The merger of these two departments seemed logical because they had previously been combined. In fact, Urzua had suggested such a merger in a Union-Respondent meeting. According to Guajardo, he spoke with Supervisors Alderete and Diaz, the supervisors of the two departments involved. The supervisors were in favor of such a merger because both departments dealt with providers, used the same provider information and the merger would reduce the ratio of providers to employees. While there was some discussion concerning the experience of the PCS employees, there was no discussion of the qualifica- tions of the payout employees. The supervisors were not ques- tioned as to the abilities of the employees in their departments or whom they would choose for layoff.10 Following his meeting with Supervisors Alderete and Diaz, Guajardo met with O’Connell to finalize the decision to merge the provider-contract and payout departments. Guajardo and 9 Miner’s contract as interim director of the centers was extended un- til August 30. 10 Guajardo testified, in his direct testimony, that at the time he spoke with Diaz and Alderete he was just seeking information to see if the merger was a good business move and was not yet seriously consid- ering merging the two departments. However, on cross-examination Guajardo testified that he told Diaz that one payout department em- ployee was to be laid off and that employee would be Angie Amador, the least senior employee. Guajardo also testified that he and O’Connell did not consider any payout employee for layoff until after they had decided to retain Segobia. Thus, it appears Guajardo and O’Connell had already decided to retain Segobia and layoff Urzua and Palafox prior to Guajardo’s meeting with Diaz and Alderete. O’Connell agreed that the merger of these two departments was a logical cost-saving strategy because the PCS and payout em- ployees both worked with the independent childcare providers and the departments had previously been incorporated in a sin- gle department. On or about May 24, O’Connell directed Gua- jardo to draft a memorandum setting forth the plan to merge the department and to layoff three employees (two PCS employees and one payout employee) to present to Respondent’s board of directors. O’Connell presented the memo to the board of direc- tors at a meeting held the evening of May 24. The board of directors approved the plan as set forth in the memorandum without discussion. Between May 24 and June 28, Guajardo discussed with the Union Respondent’s need to cut $130,000 from its administra- tive budget. However, it was not until June 28, that Guajardo informed Sanchez that Respondent “was thinking about” merg- ing the PCS and payout departments and considering employ- ees Urzua, Palafox, and Angie Amador for layoff “based upon their qualifications.” Amador was the least senior employee in Respondent’s payout department. The General Counsel does not challenge the selection of Amador for layoff. Sanchez complained that Respondent was considering laying off senior employees Urzua and Palafox. Guajardo responded that Re- spondent did not have to follow seniority. Guajardo stated that the bargaining agreement permitted Respondent to layoff based on qualifications and that Respondent “was going by qualifica- tions.” The layoff provision of the contract states: When layoffs or reduction of work are necessary, quality and continuity of childcare will be the primary consideration. Among employees who are equally qualified, seniority, as in the length of continuous service with [Respondent] will be the determining factor. . . . Prior to layoff, [Respondent] will give a five (5) calendar days notice to employees. On June 29, Palafox and Segobia met with Guajardo to dis- cuss reports that Urzua and Palafox were going to be laid off. Palafox questioned why senior employees such as Urzua and herself were going to be laid off. Guajardo stated that Respon- dent was going by qualifications. Palafox stated that Urzua was the most qualified and most senior employee. Guajardo an- swered that Segobia had worked in the payout department and, therefore, she was the most qualified of the PCS employees. Palafox responded that Urzua had worked in the administrative unit for over 23 years and had been the only payout employee for many years. Guajardo replied that Segobia’s payout experi- ence was more recent and that if the matter went to court, he was confident that Respondent “would win.” Palafox and Se- gobia asked why less senior employees were not being laid off. Guajardo insisted that Respondent could lay off employees based on qualifications. Guajardo stated that no layoffs would be taking place at that time. Guajardo did not indicate that layoffs would take place 2 days later. On June 30, Guajardo and O’Connell met with Sanchez and Segobia to discuss the Union’s proposal regarding the budget shortfall. The parties only discussed a union proposal and there was no mention of Respondent’s plan to merge the provider- contract and payout departments with the resultant layoff of three employees. Neither Guajardo nor O’Connell mentioned CHILDREN’S SERVICES INTERNATIONAL 79 that layoffs would be made that very day. As the meeting ended, O’Connell stated that he would consider the Union’s proposal and Sanchez stated that he would be willing to negoti- ate every day, if needed. O’Connell stated that if Sanchez was so willing, he would have been calling O’Connell on the tele- phone rather than protesting with a bullhorn (an apparent refer- ence to the Union’s demonstration of April 15). O’Connell accused Sanchez and the Union of ruining Respondent’s repu- tation. Following the meeting with the Union, O’Connell instructed Guajardo to go forward with the merger of the provider- contract and payout departments and to layoff Urzua, Palafox, and Amador. At approximately 5 o’clock that afternoon, Gua- jardo notified Segobia that Respondent would be laying off Urzua, Palafox, and Amador that day. At 5 p.m., Guajardo met with Amador and provided her with her layoff notice and final checks. Guajardo did not directly notify Urzua and Palafox of their layoffs. Palafox and Urzua learned of their layoffs from Segobia. At approximately 5:30 p.m., Sanchez asked Guajardo why Guajardo had not mentioned the layoffs at their meeting, earlier that afternoon. Guajardo answered that Respondent was moving ahead with its plan to cut costs and that the Union’s proposal was going to take too long. Urzua then demanded an explanation as to why she, the most senior employee, had been selected for layoff. Guajardo responded that staff talked and then he mumbled something about retaliation. Urzua ques- tioned what retaliation had to do with her layoff. Guajardo did not answer Urzua and waved his hand in a dismissive manner. Despite the contract language requiring employees to receive 5- calendar days notice, Palafox and Urzua did not receive such notice. Subsequently, they received paychecks in lieu of no- tice. After the layoffs, Supervisors Alderete and Diaz performed Urzua and Palafox’s duties. In mid-August, the payout em- ployees were trained to perform the provider-contract services work. Thereafter, each employee in the merged department performed both PCS and payout work. Segobia testified that she immediately began processing provider timesheets and her training on the payout department’s NOHO software system lasted roughly 60 to 90 minutes. Segobia testified that Urzua and Palafox could have been trained just as quickly. 5. Respondent’s defense Respondent contends that it had broad authority regarding layoffs and the assignment of job duties. Under Respondent’s management rights clause it reserved, inter alia, the rights to: determine the size, number location, and function of its organ- izational units; maintain and improve efficiency of its opera- tions, including the right to establish methods of operations; to determine the qualifications and selection for employment and jobs; to evaluate job performance; to relieve its employees of duties because of lack of work, reduced funding or other le- gitimate reasons; and to abolish positions because of lack of work, reduced funding, or other legitimate reasons. Respondent further argues that Miner had no authority over the administrative employees and played no part in the decision to merge the provider-contract and payout departments or the resultant layoffs of the three employees. However, Miner apparently had the authority to hold a meeting of the adminis- trative unit employees during worktime. Further, Respondent never disavowed Miner’s statements. Miner testified that O’Connell was well aware of her strong feelings against the Union. Respondent argues that antiunion sentiment played no part in the decision to layoff the employees or in the selection of which employees to layoff. Respondent contends that Urzua and Palafox were laid off because they were not sufficiently quali- fied to work in the payout department. Respondent contends that the payout process had changed from a 10-point key proc- ess to a NOHO software system and that the State had drasti- cally changed the regulations for provider payouts. However, the NOHO software system was not yet fully operative. The payout employees were still calculating provider timesheets with a calculator and then entering the data into the NOHO program. As indicated above, Segobia needed only 60–90 minutes of training on the NOHO system. Finally, Respondent contends that the retention of Union Steward Segobia estab- lishes that Respondent was not motivated by antiunion senti- ment. B. Analysis and Conclusions 1. Jean Miner’s meeting with the administrative unit As shown above, Miner passed out the union flyer stating that the flyer was what the employees were paying the Union for. When Miner attempted to give Palafox a copy of the flyer, Palafox said that she had already seen it. Miner replied “[o]f course you did because you created it.” Palafox answered that she had not and that Miner should talk to the Union. Miner then responded,” You pay the Union.” I find that by such con- duct Miner unlawfully interrogated Palafox in violation of Sec- tion 8(a)(1) of the Act. “[A]n employee is entitled to keep from his employer his views so that the employee may exercise a full and free choice on whether to select the Union or not, uninflu- enced by the employer’s knowledge or suspicion about those views and the possible reaction toward the employee that his views may stimulate in the employer.” Medcare Associates, Inc., 330 NLRB 935, 942 (2000), citing NLRB v. McCullough Environmental Services, 5 F.2d 923, 929 (5th Cir. 1993). That the interrogation was not in the form of a question does not alter the case. Miner told the employees that she had gone through their personnel files and that the employees were uneducated. Miner said the employees had the best jobs that they ever had and were lucky to have their jobs. Segobia asked Miner if the meet- ing was related to her work and if she could be excused. Miner told Segobia that she could be excused. As Segobia left the meeting and Urzua and Palafox went with her. As the three employees were leaving, Miner declared, “There go your lead- ers. Miner was visibly shaken and an employee questioned her about it. Miner answered that she just “needed to hit some- thing. I find that by such conduct, Miner unlawfully threatened employees in violation of Section 8(a)(1) of the Act. Miner’s subjective state of mind is no defense. 2. The layoffs of Aurora Urzua and Griselda Palafox In Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 80 (1st Cir. 1981), cert. denied 455 U.S. 989, the Board announced the following causation test in all cases alleging violations of Section 8(a)(3) or violations of Section 8(a)(1) turning on em- ployer motivation. First, the General Counsel must make a prima facie showing sufficient to support the inference that protected conduct was a “motivating factor” in the employer’s decision. Upon such a showing, the burden shifts to the em- ployer to demonstrate that the same action would have taken place even in the absence of the protected conduct. The United States Supreme Court approved and adopted the Board’s Wright Line test in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). To sustain his initial burden, the General Counsel must show: (1) that the employee was engaged in union activity; (2) that the employer was aware of the activity; and (3) that the activity was a substantial or motivating reason for the employer’s action. Motive may be demonstrated by circumstantial evidence as well as direct evi- dence and is a factual issue, which the expertise of the Board is peculiarly suited to determine. Naomi Knitting Plant, 328 NLRB 1279, 1281 (1999), citing FPC Moldings, Inc. v. NLRB, 64 F.3d 935, 942 (4th Cir. 1995), enfg. 314 NLRB 1169 (1994). In order to make a prima facie case, the General Counsel must show: (1) Urzua and Palafox engaged in union or protected activity; (2) Respondent knew of that activity; (3) Respondent harbored animus against them because of the activity; (4) Re- spondent discriminated in terms of employment; and (5) the discipline was temporally connected to the protected activity. Goodyear Tire & Rubber Co., 312 NLRB 674 (1993). I have found that Respondent has established strong eco- nomic justification for a merger of the provider-contract and payout departments. The record reveals, and the General Counsel concedes, that the merger of these two departments and the resultant layoff of three employees were necessary because of budgetary considerations. As stated earlier the issue is whether the selection of Urzua and Palafox for layoff over less senior employees was motivated by unlawful union con- siderations. It is clear that Urzua and Palafox were engaged in union ac- tivities and that Respondent was aware of such activity. As stated earlier, Urzua and Palafox were engaged in the union organizing campaign. Palafox was an election observer for the Union. Thereafter, both Urzua and Palafox participated in the collective-bargaining negotiations on behalf of the administra- tive unit employees. Both employees assisted bargaining unit employees with grievances. More recently, on April 14, Miner delayed the start of her employee in order to wait for Palafox. After Palafox stated that she had already seen the union flyer, Miner suggested that Palafox had participated in the prepara- tion of the flyer. After Segobia received permission to leave Miner’s meeting, Palafox and Urzua left the meeting with Se- gobia. Miner then referred to these employees as leaders. On April 15, Urzua and Palafox participated in the union rally in front of Respondent’s offices. Palafox was shown criticizing Respondent in the public television show which aired after the rally. As stated above, Miner, in her 2002 letter, expressed animus against employees who assisted the Union, whom she referred to as “instigators,” “malcontents,” and “members of the new ‘blackguard.’” I find particularly relevant her reference to “self serving (more highly compensated but disgruntled office work- ers) who derailed the organization.”11 Urzua was active in the Union, on the Union’s negotiating team, and was the highest paid office worker. On April 14, Miner expressed animus against the Union and contended that the Union engaged in hostile, adversarial, belligerent, and hateful behavior. As Ur- zua, Palafox, and Segobia left the April 14 meeting, Miner stated, “[T]here go your leaders.” At the instant hearing, Miner reaffirmed her antiunion sentiments expressed in her 2002 letter and at the April 14 meeting. I find further evidence of union animus in O’Connell’s statement to Sanchez, on the day of the layoffs, that if Sanchez was sincere about negotiations, he should have picked up a telephone rather than picking up a bullhorn. Further, O’Connell charged that the Union had ruined Respondent’s reputation. In addition, Guajardo in answering Urzua as to why she, the most senior employee, was laid off, mentioned that “staff talked” and made an unexplained reference to “retalia- tion.” Moreover, I find that Urzua was Respondent’s senior em- ployee and more familiar with the State’s new regulations than any other employee. Further, she had previously worked in the payout department. While procedures in that department had been updated, there was no reason to believe that Urzua could not readily learn the new procedures. I find it significant that Alderete, the supervisor of the three PCS employees was not questioned as to whom Respondent should lay off and whom Respondent should retain. Further, there was no discussion with Diaz, the supervisor of the payout employees, as to which payout employees should be laid off or retained. It strains credibility to believe that in a reduction of force from 10 to 7 employees, Respondent would not discuss with its supervisors the relative qualifications of the employees. If Respondent was really concerned about qualifications, Guajardo would have discussed with the supervisors the relative merits of each em- ployee. It seems clear that Guajardo had focused on laying off Urzua and Palafox before he discussed with the supervisors Respondent’s plan to merge the provider-contracts and payout departments. Thus, the inference of unlawful motivation is strengthened by Guajardo’s failure to consult with the employ- ees’ immediate Supervisor Alderete. In appropriate circum- stances, the Board has regarded an employer’s failure to consult with the immediate supervisor who is the most accurate source of pertinent information as evidence of discriminatory motiva- tion. Lancer Corp., 271 NLRB 1426, 1427–1428 (1984); Wil- liams Services, 302 NLRB 492 (1991). Here, Alderete admits that she was never asked which employee or employees should be laid off. Guajardo started from the premise that the layoffs would come from the provider-contract department. I do not believe that Respondent was oblivious to the disparate impact on union supporters and senior employees this strategy would have. Such a starting point insured that leading union adherents would be laid off. Second, Guajardo realized that Respondent 11 Urzua testified that Miner did not merely hand her a copy of the letter but rather threw the letter at her. CHILDREN’S SERVICES INTERNATIONAL 81 needed to keep at least one employee with experience in the provider-contract department. Guajardo admitted that when he evaluated Urzua and Palafox he did not consider their employee performance appraisals, their lack of discipline, or their knowl- edge and skills in the provider-contract department. Instead, Guajardo merely compared Urzua and Palafox to Segobia. The sole criteria for finding that Segobia was more qualified that Urzua and Palafox was the recent performance of payout du- ties. Guajardo did not compare Urzua and Palafox to the less senior employees in the payout department. Rather, Respondent appears to have narrowly defined qualifications to mean experi- ence in the payout department.12 Guajardo’s approach would necessarily result in the layoff of Urzua and Palafox, two leading union adherents. Further, such an approach would demonstrate to employees and the Union that Respondent need not follow seniority in laying off employees. Respondent was well aware that these employees were not engaged in childcare, the primary consideration in layoffs. And Respondent was well aware that as to employees who are equally qualified, seniority is the determin- ing factor. Respondent sought to send a message that it could avoid following seniority by asserting that a less senior employee was more qualified. Respondent argues that its retention of Union Steward Sego- bia negates the notion that Urzua and Palafox were selected because of their union activities. However, a discriminatory motive otherwise established is not disproved by an employer’s proof that it did not weed out all union adherents. American Petrofina Co., 247 NLRB 183, 193 (1980); Nachman Corp. v. NLRB, 337 F.2d 421, 424 (7th Cir. 1964). It is not necessary that the antiunion reason for a layoff be the only one leading thereto. I find that antiunion hostility was the substantial or motivating element which prompted the selection of Urzua and Palafox for layoff. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 12 Such a redefinition would necessarily result in the layoff of at least two leading union adherents. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By threatening employees with reprisals for engaging in union activities, and by unlawfully interrogating employees about their union activities, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By laying off Aurora Urzua and Griselda Palafox because of their union activities, Respondent violated Section 8(a)(3) and (1) of the Act. 5. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that Respondent engaged in unfair labor prac- tices, I find that it must be ordered to cease and desist therefrom and to take certain affirmative action to effectuate the policies of the Act. The Respondent having discriminatorily laid off Urzua and Palafox, it must offer them full and immediate rein- statement to the positions they would have held, but for the discrimination against them. Further, Respondent shall be di- rected to make Urzua and Palafox whole for any and all loss of earnings and other rights, benefits and privileges of employ- ment they may have suffered by reason of Respondent’s dis- crimination against them, with interest. Backpay shall be com- puted in the manner set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as provided in New Horizons for the Retarded, 283 NLRB 1173 (1987); see also Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 139 NLRB 716 (1962). Respondent must also be required to remove any and all ref- erences to its unlawful layoff of Urzua and Palafox from its files and notify them in writing that this has been done and that the unlawful discharge will not be the basis for any adverse action against him in the future. Sterling Sugars, Inc., 261 NLRB 472 (1982). [Recommended Order omitted from publication.]