Weldon, Williams & Lick, Inc.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 348 NLRB No. 45 792 Weldon, Williams & Lick, Inc. and Graphic Commu- nications Conference International Brotherhood of Teamsters.1 Case 26–CA–21926 September 29, 2006 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On October 5, 2005, Administrative Law Judge Mary Miller Cracraft issued the attached decision. The Re- spondent filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief to the Respondent’s exceptions, and the Respondent filed reply briefs. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the judge’s decision and the record in light of the exceptions and briefs and has de- cided to affirm the judge’s rulings, findings,2 and conclu- sions as modified below and to adopt the recommended Order as modified below. Introduction The judge found that the Respondent violated Section 8(a)(1) by Supervisor Todd Friday threatening that the Respondent would not let the Union in. According to the judge, Friday’s statement constituted an unlawful threat that unionization would be futile. As discussed below, we disagree. The judge also found that the Respondent violated Section 8(a)(3) and (1) by discharging employee Dale Morfey. For the reasons stated below, we agree with that conclusion.3 1 The name of the Union was amended at the hearing from Graphic Communications International Union, AFL–CIO, CLC to Graphic Communications Conference International Brotherhood of Teamsters. We have amended the caption to reflect this change, as well as the disaffiliation of the Teamsters from the AFL–CIO effective July 25, 2005. 2 The Respondent 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 adopting the judge’s credibility resolutions, we do not rely on her finding that Human Resources Manager James Houston admitted that he was fearful of contradicting the testimony of James Walcott, the Respondent’s president. There is no record evidence to support this finding. The judge’s reliance on facts not in the record in this and other in- stances noted infra troubles Member Schaumber. However, he is con- fident, after an independent review of the record, that the record sup- ports the judge’s ultimate conclusion that the discharge of employee Morfey violated Sec. 8(a)(3) for the reasons stated in this decision. 3 Member Walsh concurs with the majority’s finding of an 8(a)(3) violation here, for the reasons stated by the judge. However, he dis- Facts Morfey worked for the Respondent for 27 years. The Respondent had not disciplined him in the last 10 years.4 Jim Walcott, company president, testified that Morfey always conducted himself in a professional manner. Human Resources Manager James Houston admitted that Morfey was a “good and valuable employee.” Although employees regularly used profanity at the Respondent’s facility and the Respondent tolerated this behavior, Mor- fey did not curse. He did, however, regularly share his opinions with his supervisor, Friday, as well as other management personnel and coworkers. In late September 2004,5 the Respondent distributed a revised employee handbook, to be effective January 1, 2005.6 The revised handbook included a new random drug-testing policy. The Respondent required each em- ployee to sign a receipt stating that he agreed “to read and abide by the policies set forth in the handbook.” Morfey did not agree with the implementation of a drug-testing policy. He told Friday that the testing out- lined in the Respondent’s handbook was invasive. He further said that the testing was “lazy,” because supervi- sors were not required to look for signs of drug use, and “cowardly,” because instead of using probable cause, the policy lumped all employees together. Morfey also shared his opinion with Walcott. On October 4, he e- mailed Walcott and explained that the random drug- testing policy would be seen as a personal insult and an attack upon the employees’ “personal honor and dig- nity.” Morfey suggested that the testing be based on reasonable cause or suspicion. Walcott responded that the Respondent’s customers required a drug-free work- place. Shortly after this discussion, Friday gave Morfey a new handbook detailing the drug-testing policy and a receipt to sign. Morfey told Friday that he wanted an sents from the majority’s dismissal of the 8(a)(1) allegation. See fn. 16, below. 4 The Respondent keeps disciplinary records up to 10 years. 5 All dates are in 2004, unless stated otherwise. 6 The handbook also included a statement in the preface from the founder, C.A. Lick, dated 1898, endorsed by every succeeding presi- dent, stating: [In large families] black sheep are occasionally found. They are a discredit to a family and a business. If a helping hand fails to guide them along the right path, they are usually expelled from the family circle and are shunned by those who strive to preserve the better ways of life. Respondent’s employee handbook further states: [The Respondent] believes in a Union-free environment and is op- posed to the unionization of its employees and will utilize all legal and proper means to resist union representation. It is our opinion that the success of this company is dependent upon the skill, effort and dedication of its employees working together as a team. WELDON, WILLIAMS & LICK, INC. 793 attorney or civil liberties organization to review the pol- icy. He wrote “For Receipt Only” on the form and re- turned it to Friday. Although not discussed by the judge, Morfey also discussed with his coworkers why he thought the policy was cowardly. Morfey took a leave of absence from October 8 to No- vember 3, to run as an independent candidate for election to the United States House of Representatives. On No- vember 4, Friday informed Morfey that he would have to sign a receipt agreeing to comply with the handbook. Morfey requested a meeting with Houston. Later that morning, Morfey, Friday, and Houston met in Houston’s office. Houston told Morfey, “Dale, we’ve got a problem here. What do we have to do to solve it?” Morfey repeated his concerns about the test. When Houston adamantly affirmed its legality and fairness, Morfey stood up and cursed for the first time in his ca- reer with the Respondent, saying, “This is f—g crazy. This is ridiculous.” He then attempted to leave the room and calm down. Friday, whose chair was blocking the door, did not get up to allow Morfey to leave.7 Thus, when Morfey tried to open the door, the door bounced off the back of Friday’s chair, leaving a dent in the door. Houston and Friday urged Morfey to sit and calm down. Friday said, “Dale, you’re a good employee. Just sit down and don’t do something you might regret.” After Morfey sat down, the meeting continued with Morfey’s request that he be allowed to have the policy reviewed by an attorney or civil rights organization. Houston told Morfey that he would try to have an answer from Wal- cott that day. Houston admitted that he did not consider disciplining Morfey either before or after the meeting. Neither Hous- ton nor Friday mentioned discipline at the meeting with Morfey. After the meeting, Houston met with Walcott, John Boyett, vice president of manufacturing, and Tom Moreton, Friday’s immediate supervisor. According to the Respondent, Walcott stated that he wanted to imme- diately terminate Morfey, but Houston convinced him to sleep on it. The judge, however, did not credit this testi- mony. According to Boyett, the Respondent did not de- cide on November 4 to terminate Morfey.8 Walcott testified that during the meetings with his managers he felt that Morfey’s actions were not worth investigating although he had never heard of Morfey 7 The judge found that Friday “refused” to move his chair and admit- ted telling Morfey that he refused to move his chair, and that Houston testified that Friday said he would not move his chair. There is no record evidence to support these findings. 8 Boyett testified that, shortly after this meeting, Friday told him that he was scared to death by Morfey’s actions. There is no record evi- dence to support the judge’s further finding that Friday denied this testimony. cursing or engaging in any misconduct and did not ex- pect such conduct to occur again. He explained that “something had changed in Morfey and [Walcott] didn’t feel like it was worth continuing his employment with the company.” On the evening of November 4, Morfey researched the random drug-testing issue and concluded that one way to control the parameters of the test was to involve a union and negotiate. Thus, he requested information on or- ganization from the Union. Morfey also e-mailed man- agement and notified them that he had contacted the Un- ion, because he does not “believe in doing anything be- hind people’s backs.” When Morfey came to work on November 5, he sub- mitted a signed receipt for the employee handbook with the notation “U.D.” (meaning under duress), which Houston accepted. Later that morning, Morfey brought his coffee into Friday’s cubicle as he does every morning and asked Friday what he thought about the e-mail about the Union. Friday said, “They are not going to let that happen. No way.” Friday then stated that he did not pretend to understand anything about unions and that he was not going to talk to Morfey about it.9 Morfey replied that since Houston had emphasized the testing policy’s legality, management should also understand the em- ployees’ legal right to unionize.10 As Morfey left Friday’s cubicle, he (Morfey) stated, “By the way, Todd, the next time that something like that happens, you better get out of my way.” Morfey testified that he did not mean the statement as a threat and that he only meant that Friday had increased the tension in the room by not allowing Morfey to exit. Morfey later char- acterized his statement as a caution similar to warning someone to look both ways before crossing the street. Friday testified that he considered Morfey’s warning a threat, but that he did not consider it a specific threat. Walcott also read Morfey’s e-mail that morning. Wal- cott knew that Morfey’s union conduct could be “another variable” causing Morfey’s termination to be unlawful, so he met with Houston and instructed him to consult labor counsel. Several hours later, Friday reported Mor- fey’s warning to Houston and spoke with Boyett, who, in turn, reported the warning to Walcott. Houston testified that Friday did not characterize Morfey’s comment as a threat. Walcott testified that he did not view Morfey’s 9 Friday testified that by “they” he meant management and the other employees. 10 The record shows that Friday and Morfey further discussed the drug-testing policy. Friday testified that he told Morfey that he would try to have the company nurse give Morfey the same presentation about the new policy that was given to management. Morfey testified that Friday told him that he would place Morfey on the drug-testing policy implementation committee. The judge did not discuss this testimony. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794 warning as a threat of bodily harm and he did not expect Morfey to act that way again.11 Later that day, Walcott met with Boyett, Morton, Houston, and Friday. No one objected when Walcott stated that he wanted to terminate Morfey. In the presence of a police officer, Walcott terminated Morfey. The termination letter claimed that Morfey committed two highly serious offenses outlined in the employee handbook that result in immediate termina- tion—abusing company property and making “terroristic threats.”12 According to the letter, Morfey became vio- lent, cursed, and damaged the office door on November 4, and, on November 5, threatened Friday (with the “get out of my way” statement) while wearing a gun holster.13 Morfey told Walcott that “you know as well as I do that this is because of the Union.” Supervisor Boyett testified that it was not uncommon for employees, even in discussions with their supervi- sors, to raise their voices and become upset. There is no evidence that any of these employees were disciplined. For example, employee David Dudley confronted Super- visor Jackie Presley about a wage raise, used profanity, and pushed Presley up against a wall. The Respondent did not discipline Dudley, even though Presley felt threatened and began wearing a panic button, which summons the police when activated. In another instance, the Respondent discharged employee Steve Ross after he telephoned a supervisor at the supervisor’s home, stated he knew where the supervisor lived, and threatened to go to the supervisor’s home and assault the supervisor and his family. In addition, Boyett improperly grabbed em- ployee Paul Minden and Minden filed a police report. Houston investigated the matter, found that Boyett’s conduct was “inappropriate,” but determined that no dis- cipline was warranted. In October 2000, employee Ben 11 The judge did not discuss this testimony. 12 Although not mentioned by the judge in her decision, the Respon- dent’s handbook provides for a progressive disciplinary system which includes an oral warning, written warning, suspension, and finally discharge, unless the violation is classed as “highly serious,” in which case termination is immediate. Highly serious violations include the following: • Abusing, misusing, destroying or damaging company property, tools, equipment or products or the property of any other em- ployee. • Terroristic threatening of supervisor, vendor, customers or other employees. 13 Morfey, an ex-police officer, has a license to carry a gun and car- ried one every day on his way to and from work. He kept the gun in the glove compartment of his car while at work and the gun holster in his cubicle. Friday admitted that Morfey wore the empty holster to work every day and stored it in his cubicle. Friday also agreed with Morfey’s testimony that, consistent with his practice of keeping the holster stored in his cubicle, Morfey was not wearing the holster during his November 5 conversation with Friday. Selby used profanity while shoving employee Cantrell against a wall and over a truck. The Respondent gave Selby a written warning. The Respondent asserts that it terminated employees Daryl Chastain and Robert Marsh for causing damage to the door of the women’s restroom. However, the Re- spondent’s records show that it terminated them for vio- lating the Respondent’s sexual harassment policy after they improperly entered the women’s restroom. Alleged Statement of Futility The judge viewed Friday’s statement that “[t]hey are not going to let that happen. No way,” as a threat that efforts at unionization would be futile. For the following reasons, we disagree. An employer violates Section 8(a)(1) by threatening employees that attempts to secure union representation would be futile. Wellstream Corp., 313 NLRB 698, 706 (1994). An unlawful threat of futility is established when an employer states or implies that it will ensure its non- union status by unlawful means. Ready Mix, Inc., 337 NLRB 1189, 1190 (2002). On the other hand, it is well established that “words of disparagement alone concern- ing a union or its officials are insufficient for finding a violation of Section 8(a)(1).” Trailmobile Trailer, L.L.C., 343 NLRB 95, 95 (2004) (quoting Sears, Roe- buck & Co., 305 NLRB 193 (1991)). Instead, such comments are protected by Section 8(c).14 Applying these principles, we find that Friday’s state- ment did not unlawfully threaten that union representa- tion would be futile. Friday, a low-level supervisor, did not initiate the subject of unionization. Instead, he only expressed his opinion that “they” would not let that hap- pen in response to Morfey’s solicitation of his opinion. He then changed the subject, stating that he did not know anything about unions. Further dispelling any inference of coercion, Morfey testified that Friday followed his remark about unions by offering to place Morfey on the drug-testing policy implementation committee. And Fri- day himself had not engaged in any unfair labor prac- tices. Considering this episode as a whole, and assuming that the “they” referred to the Respondent’s management, the statement does not establish that management would resort to unlawful tactics to keep a union out. Rather, reasonably read, Friday was offering the prediction that management would vigorously resist a union and would prevail. Morfey could not have reasonably interpreted that comment as unlawful. See Ross Stores, Inc., 329 14 Sec. 8(c) provides that “[t]he expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expres- sion contains no threat of reprisal or force or promise of benefit.” WELDON, WILLIAMS & LICK, INC. 795 NLRB 573, 575–576 (1999), enf. denied in part 235 F.3d 669 (D.C. Cir. 2001) (statement that employer’s vice president “would do anything in his power to keep the union out of the building” lawful “in the absence of any other threatening language or circumstances”). In finding that Friday’s statement was an unlawful threat, the judge relied on Commercial Erectors, Inc., 342 NLRB 940, 942 fn. 4 (2004). That case is distin- guishable. In Commercial Erectors, a supervisor told union applicants that they could “forget” about organiz- ing and predicted that the company “will not go union.” These statements were made in the prospective hiring context, in conjunction with other threats not to hire un- ion members, and the employer’s pointblank refusal to accept any union referrals. On these facts, the Board found that the statements were unlawful threats that at- tempts to unionize the Respondent would be futile. None of those facts, however, are present in this case. Instead, Friday’s comparatively ambiguous remarks were made in response to a question posed by Morfey during a casual conversation over coffee in the context of a long-term working relationship.15 We also find distinguishable the cases our dissenting colleague cites as support for finding a violation here. In D & F Industries, 339 NLRB 618, 643 (2003), a threat of futility was found when the employer’s chief operating officer told assembled employees that “by no way, no means was a union going to be able to get in” during a speech where he also threatened discharge and plant clo- sure. In International Door, 303 NLRB 582, 590, 599 (1991), enfd. 985 F.2d 560 (6th Cir. 1993), the em- ployer’s president told assembled employees there was “no way that the Union was going to come in” during a speech in which he also threatened plant closure and more onerous work rules. No facts of this character are present here. Southwire Co., 282 NLRB 916, 917–918 (1987) (employees unlawfully solicited to remove union badges and renounce union); and Fotomat Corp., 199 NLRB 732, 732–733 (1972) (threat of plant closure), do not even involve alleged threats of futility. As such, they shed little light on whether Friday’s isolated remark unlawfully threatened that unionization would be futile. For these reasons, we find that the statement was not unlawful.16 15 Member Schaumber agrees that Commercial Erectors is distin- guishable. He notes that in Commercial Erectors, he found only that the supervisor’s statements when viewed as a whole unlawfully con- veyed a threat not to hire the applicants because of their union activities and affiliation. He did not find a threat that unionization would be futile. 16 Member Walsh would adopt the judge’s finding that Friday’s statement to Morfey violated Sec. 8(a)(1). Friday’s unqualified “no way” statement conveyed the unlawful message that Morfey’s organiz- Alleged Unlawful Discharge The judge found that the Respondent violated Section 8(a)(1) and (3) by discharging Morfey. We agree. Our analysis of whether Morfey’s discharge violated the Act is governed by the test articulated in Wright Line.17 Under that test, the General Counsel must prove by a preponderance of the evidence that union animus was a substantial or motivating factor in the adverse em- ployment action. The elements commonly required to support such a showing are union or protected activity by the employee, employer knowledge of that activity, and union animus on the part of the employer. See Wil- lamette Industries, 341 NLRB 560, 562 (2004).18 Here, the General Counsel has met his initial burden of showing that Morfey’s union activity was a substantial or motivating factor leading to his discharge. Morfey alerted the Respondent to his union activities when he e- mailed the Respondent on November 4 about his contact with the Union.19 He was discharged the following ing efforts would be futile because the Respondent would not allow a union to represent its employees. See D & F Industries, 339 NLRB at 618 fn. 2, 643 (statement that “by no way, no means was a union going to be able to get in”); International Door, 303 NLRB at 582, 590, 599, enfd. 985 F.2d 560 (6th Cir. 1993) (statement that there was “no way that the Union was going to come in”). The coercive tendency of Fri- day’s statement was not dispelled by virtue of Friday’s status as a front- line supervisor, the fact that he may have been expressing his own opinion, or the fact that he committed no additional unfair labor prac- tices. See Southwire Co., supra (finding unlawful threat of reprisal based on shift foreman’s friendly suggestion that employees should “take off their [union] badges, apologize, and clear their records” in order to avoid layoff); Fotomat Corp., 199 NLRB at 732–733 (1972) (finding unlawful threat of plant closure based on area manager’s statement of opinion that he “would not doubt” that company would go so far as to close the area operation if the union came in). 17 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). 18 Regarding the Wright Line analysis, Member Schaumber notes that the Board and circuit courts of appeals have variously described the evidentiary elements of the General Counsel’s initial burden of proof under Wright Line, sometimes adding as an independent fourth element the necessity for there to be a causal nexus between the union animus and the adverse employment action. See, e.g., American Gar- dens Management Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 (2003), since Wright Line is a causation analysis, Member Schaumber agrees with this addi- tion to the formulation. 19 The Respondent argues that Morfey contacted the Union only to make it more difficult for the Respondent to discharge or discipline him, because he knew that his behavior in Houston’s office on Novem- ber 4 was grounds for discharge or discipline. We find no merit in the Respondent’s argument. No one told Morfey that discipline was a possibility on November 4, and he had no reason to believe that his job was in jeopardy. Moreover, it is undisputed that during Morfey’s em- ployment with the Respondent, he regularly shared his many opinions with management and coworkers without being subjected to discipline. He e-mailed management in October about his concerns with the drug- testing policy and was not disciplined. Thus, lacking any other indica- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796 day.20 Thus, the timing of his discharge, which followed the Respondent’s first knowledge of his union sympa- thies, supports an inference of animus. See National Steel Supply, Inc., 344 NLRB 973, 974 (2005) (timing of adverse action indicative of discriminatory motive where discipline issued shortly after employer learned about union campaign and only 1 business day after interrogat- ing employee about union activities). In finding animus, we also rely on the pretextual nature of the Respondent’s stated reasons for the discharge, which are discussed more fully below.21 Accordingly, under Wright Line, the burden shifted to the Respondent to prove, as an affirmative defense, that it would have taken the same action even in the absence of Morfey’s union activity. See Manno Electric, 321 NLRB 278, 280 fn. 12 (1996), enfd. mem. 127 F.3d 34 (5th Cir. 1997). To establish this affirmative defense, “[a]n employer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of protected activity.” W. F. Bolin Co., 311 NLRB 1118, 1119 (1993), petition for review denied 70 F.3d 863 (6th Cir. 1995), enfd. mem. 99 F.3d 1139 (6th Cir. 1996). We find that the Respondent has failed to carry this burden. The Respondent maintains that it discharged Morfey because on November 4 he cursed, became violent, and damaged the door, and, on November 5, he threatened Friday while wearing a gun holster. The record does not support the Respondent’s assertion. The Respondent has significantly overstated the seriousness of Morfey’s con- duct, calling it “violent” and asserting that he damaged the door to Houston’s office. There is no evidence of violence, however, and the damage to the door was no more than a slight dent. At the time of these events, moreover, Houston viewed the November 4 episode as relatively innocuous and saw no need to discipline Mor- tion from management, it is unlikely that Morfey viewed his actions as grounds for discharge. 20 The Respondent asserts that it decided to discharge Morfey on November 4, before he contacted the Union. For the reasons stated by the judge, we reject this contention and find instead that the decision was made on November 5. 21 We do not rely on the judge’s finding of general animus in the Re- spondent’s “black sheep” preface to its handbook when combined with its lawful handbook policy opposing unionization. See e.g., Cox Com- munications Gulf Coast, 343 NLRB 164 (2004) (finding it unnecessary to rely on judge’s finding that the employer’s antiunion animus was demonstrated by communications to employees about its commitment to remain union free and to protect itself and employees from “the risks and costs of a union”). We also do not rely on Walcott’s statement that Morfey’s e-mail was “another variable” as evidence of animus. Wal- cott was referring to his awareness that it is unlawful to discriminate against employees for engaging in union activities. fey for it. Likewise, Walcott testified that he did not view Morfey’s November 5 statement as a threat of bod- ily harm or expect it to be repeated. Although the Re- spondent cited it as a reason for his discharge, the Re- spondent’s reliance on the fact that Morfey was wearing an empty guy holster is equally unavailing, given that Friday admitted that Morfey was not wearing the holster. The Respondent’s reliance on Morfey’s single profan- ity as grounds for his discharge stands in stark contrast to its tolerance of such language from other employees. Boyett similarly did not impose discipline in cases where he witnessed upset employees raising their voices with supervisors. Instead, he simply told the employee to calm down. Likewise, the Respondent did not discipline employee Dudley after he confronted his supervisor and used profanities. While employee Selby was disciplined after he swore at employee Cantrell and shoved him against a wall and over a truck, unlike Morfey he was not discharged. Instead, he received only a written warning. The instances where the Respondent did discharge employees are not comparable to the instant case. The Respondent discharged Ross after he threatened his su- pervisor with assault. Ross called his supervisor at home, stated that he knew where his supervisor lived, and threatened to assault his supervisor and his family. Morfey’s uncharacteristic outburst is not comparable to Ross’s threat of bodily harm. In addition, the Respon- dent’s discharge of Chastain and Marsh allegedly be- cause they damaged the women’s restroom door is not similar to its discharge of Morfey for damaging Hous- ton’s door. The record shows that the Respondent actu- ally discharged Chastain and Marsh for sexual harass- ment. Thus, unlike Morfey, they were not discharged for damaging company property. For these reasons, we find that the Respondent failed to prove by a preponderance of the evidence that it would have discharged Morfey in the absence of his protected union activity. Rather, we find that the Respondent’s stated reason for discharging Morfey was pretextual, and that the facts of this case warrant an inference that the Respondent’s true motive was an unlawful one that it wished to conceal. Richard Mellow Electrical Contrac- tors Corp., 327 NLRB 1112, 1115 fn. 17 (1999). For all of the foregoing reasons, we find that Morfey’s discharge violated Section 8(a)(1) and (3). ORDER The National Labor Relations Board orders that the Respondent, Weldon, Williams & Lick, Inc., Fort Smith, Arkansas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Delete paragraph 1(a) and reletter the paragraphs that follow. WELDON, WILLIAMS & LICK, INC. 797 2. Substitute the attached notice for that of the admin- istrative law judge. 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 discharge Dale Morfey or any other em- ployee because he supported the Union or because he acted in concert with other employees. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of your rights. WE WILL within 14 days from the date of the Board’s Order, offer Dale Morfey full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Dale Morfey whole for any loss of earnings and other benefits resulting from his discharge, less any net interim earnings, plus interest. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful discharge of Dale Morfey, and WE WILL, within 3 days thereafter, notify him in writing that this has been done and that the discipline and discharge will not be used against him in any way. WELDON, WILLIAMS & LICK, INC. Rosalind F. Eddins, Esq., for the General Counsel. John D. Davis, Esq., of Little Rock, Arkansas, for the Respon- dent. Thomas D. Allison, Esq., of Chicago, Illinois, for the Charging Party. DECISION STATEMENT OF THE CASE MARY MILLER CRACRAFT, Administrative Law Judge. On November 29, 2004,1 Graphic Communications International Union, AFL–CIO, CLC (the Union or the Charging Party)2 filed an unfair labor practice charge against Weldon, Williams & Lick, Inc. (Respondent). Pursuant to this charge, on May 26, 2005, the Acting Regional Director for Region 26 of the Na- tional Labor Relations Board (the Board) issued a complaint and notice of hearing alleging that Respondent violated Section 8(a)(1) of the National Labor Relations Act3 (the Act) by telling employees that it would not let the Union in, and Section 8(a)(1) and (3)4 by discharging its employee Dale Morfey be- cause he supported the Union and to discourage other employ- ees from supporting the Union or acting concertedly with other employees. On August 1 and 2, 2005, these allegations were tried before me in Ft. Smith, Arkansas. On the entire record,5 including my observation of the de- meanor of the witnesses,6 and after considering the briefs filed by counsel for the General Counsel, counsel for the Charging Party, and counsel for the Respondent, I make the following FINDINGS OF FACT A. Jurisdiction and Labor Organization Status Respondent is a commercial printer with a facility in Fort Smith, Arkansas. During the 12-month period ending April 30, 2005, Respondent sold and shipped goods valued in excess of $50,000 and purchased and received goods valued in excess of $50,000 directly from points outside the State of Arkansas. Respondent admits and I find that it is an employer engaged in 1 All dates are in 2004, unless otherwise referenced. 2 The name of the Union was amended at trial from Graphic Com- munications International Union, AFL–CIO, CLC to Graphic Commu- nications Conference Brotherhood of Teamsters. 3 Sec. 8(a)(1) of the Act, 29 U.S.C. § 158(a)(1), provides “[i]t shall be an unfair labor practice for an employer to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the Act].” Sec. 7 sets forth the rights of employees, including, inter alia, the right to form, join, or assist labor organizations. 4 Sec. 8(a)(3) of the Act, 29 U.S.C. § 158(a)(3), prohibits discrimina- tion which encourages or discourages membership in any labor organi- zation. 5 On September 15, 2005, the Union filed a motion to correct the transcript. As the motion was unopposed, the motion is granted and received in the record as judge’s Exh. 1. 6 Credibility resolutions have been made based upon witness de- meanor, the weight of respective evidence, established or omitted facts, apparent probability, and reasonable inferences drawn from the record as a whole. Testimony contrary to my findings has been discredited on some occasions because it was in conflict with credited testimony or documents or because it was inherently incredible and unworthy of belief. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 798 commerce within the meaning of Section 2(2), (6), and (7) of the Act. Respondent admits and I find that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. B. Background Founded in 1898, Respondent provides custom security printing to firms throughout the United States. Respondent employs about 300 employees at its Ft. Smith, Arkansas facil- ity. Jim Walcott, great grandson of one of the founders, has been president of Respondent for about 20 years. John Boyett is vice president of manufacturing. About 14 or 15 supervisors report to Boyett. James L. Houston is the human resources manager. Richard Todd Friday is creative director. In September, Respondent’s employee handbook was re- vised. All employees were provided a copy of the newly re- vised handbook in late September. One change in the new handbook was implementation of a certified random drug- testing program, which was to be effective January 1, 2005. Each employee was required to sign an acknowledgement form signifying receipt of the new handbook and agreement to abide by the new rules. The rules in the revised handbook apply equally to supervisors and rank and file employees. C. The Alleged 8(a)(1) and (3) Violations 1. Facts Respondent’s employees have never been represented by a union. Respondent’s employee handbook states, Weldon, Williams & Lick, Inc., believes in a Union-free envi- ronment and is opposed to the unionization of its employees and will utilize all legal and proper means to resist union rep- resentation. It is our opinion that the success of this company is dependent upon the skill, effort and dedication of its em- ployees working together as a team. In opposing unionization, Respondent endorses a loyal, fam- ily-like environment. The preface of the employee handbook contains a statement from the founder, C.A. Lick, endorsed by every succeeding president, stating: [In large families] black sheep are occasionally found. They are a discredit to a family and a business. If a helping hand fails to guide them along the right path, they are usually ex- pelled from the family circle and are shunned by those who strive to preserve the better ways of life. Dale Morfey worked for Respondent for over 27 years. For the past 16 years, he worked in Respondent’s graphic design department. Respondent’s supervisors admitted that Morfey was an exemplary employee. Jim Walcott, company president, admitted that Morfey turned out great work, was technically competent, intelligent and articulate, and always conducted himself in a professional manner. James Houston, director of human resources, admitted that Morfey was a “good and valu- able employee.” Todd Friday, Morfey’s supervisor, testified that Morfey had not been disciplined in the 10 years that Friday worked with Morfey. In late September, Respondent distributed its new employee handbook, to be effective January 1, 2005. Each employee was asked to sign an acknowledgement stating that he agreed “to read and abide by the policies set forth in the Handbook.” Mor- fey told Friday that he believed the random drug-testing pro- posed by Respondent was invasive because it required employ- ees to give urine samples in the presence of a third party, per- haps of the opposite sex, without any requirement of reasonable cause. Morfey expressed his concerns with Friday prior to taking a leave in October 2004. Morfey was on a leave of ab- sence from October 8 to November 4, so that he could cam- paign for the United States Congress. In his discussions with Friday, Morfey expressed his belief that random testing was “lazy” and “cowardly.” Morfey said the policy was lazy because supervisors were not required to look for signs of drug use. He stated that the policy was cow- ardly because instead of using a probable cause, based on sus- picious behavior, past history or attendance problems, the pol- icy was simply lumping all employees together. On October 4, Morfey sent an e-mail to Company President Jim Walcott stat- ing his belief that the random testing program would be seen as a “personal insult” and attack upon the employees’ “personal honor and dignity.” Morfey suggested that testing be based on reasonable cause or suspicion. Walcott responded that Respon- dent’s customers required a drug-free workplace and that he did not believe the program would lead to body searches. Shortly before Morfey took his leave to run for Congress, Friday gave him a new employee handbook and a receipt for Morfey to sign. Morfey told Friday that he wanted an attorney or civil liberties organization to review the drug policy. Morfey wrote “For Receipt Only” on the receipt and returned it to Friday. Morfey returned to work on November 3, the day after the election. On November 4, at the beginning of Morfey’s shift, Friday informed Morfey that James Houston, human resources director, would not accept Morfey’s “For Receipt Only” nota- tion on the handbook receipt and that Morfey would have to sign a receipt agreeing to comply with the handbook. Morfey requested a meeting with Houston and Friday said he would set up such a meeting. At approximately 9 in the morning, Friday accompanied Morfey to Houston’s small office. Morfey walked into Hous- ton’s office first and sat in a chair facing Houston. Friday sat in an extra chair brought into the office with his back to the door. Houston told Morfey, “Dale, we’ve got a problem here. What do we have to do to solve it.” Morfey answered that he was very concerned about the drug test. Morfey argued that the testing was grossly humiliating and degrading to employees. Morfey explained that based on his research, the urine speci- mens had to be observed. Houston answered that the test had been fully researched and was legal. Houston told Morfey that Respondent fully intended to implement its drug-testing policy and that if Morfey did not like it, he could work elsewhere. Morfey objected to being dismissed in that manner. He stated: James, you’ve got grandmothers. You’ve got mothers. And you have daughters working here in the plant. Do you think it’s right to force them into that situation, that they are going to do the things that I described before—exposing body parts and urinating in a cup in front of a young male technician? Do you think that’s right? WELDON, WILLIAMS & LICK, INC. 799 When Houston answered, “yes,” Morfey stood up to leave and “calm down.” As Morfey stood up, he cursed for the first time in his 27-year career with Respondent.7 Morfey said, “This is f—g crazy. This is ridiculous,” and attempted to leave the room. However, Friday’s chair was blocking the exit and the door bounced off the back of Friday’s chair. Morfey opened the door a second time and attempted to squeeze through but could not fit through the opening. Friday refused to move his chair.8 Houston and Friday then urged Morfey to sit and calm down. Friday said, “Dale, you’re a good em- ployee. Just sit down and don’t do something you might re- gret.” Morfey sat down and the meeting resumed. Houston joked that Morfey put a hole in the door. Morfey could not see any hole in the door and asked, “Where’s the hole?”9 The meeting continued for another 10 minutes. Morfey re- quested that he be allowed to have an attorney or civil liberties organization look at the drug policy. Houston asked if Morfey was calling him a coward. Morfey denied that he was calling Houston or anyone else a coward. He answered that the policy was cowardly because supervisors did not have to look for probable cause but simply lumped all employees together. Houston stated that he was responsible for the policy and asked whether Morfey was calling him a coward. Morfey just shrugged his shoulders.10 Morfey repeated his request to have the drug policy reviewed. Houston said he would check with Walcott to see if Respondent would give Morfey 30 days to have the policy reviewed. Houston said he would try to have an answer for Morfey later that day. The meeting ended cor- dially and Friday moved his chair so that Morfey could leave the office. Neither Houston nor Friday said anything in this meeting about discipline for something that occurred in this meeting. Houston admitted that he had not considered any discipline of Morfey before the meeting, and by the end of the meeting still had not considered any type of discipline of Morfey. Morfey did not hear from Houston again that day. Morfey questioned Friday several times that day in an attempt to find out about his request to have the drug policy reviewed. Respondent claims that after meeting with Morfey, Houston met with Walcott to discuss Morfey’s desire not to sign the required receipt of the employee handbook and Morfey’s re- quest for 30 days to have the drug policy reviewed. Houston reported to Walcott what had occurred at the meeting. Houston 7 It is undisputed that cursing is a common practice at Respondent’s facility. There is a “cuss jar” in which employees caught cursing pay a small amount if caught cursing. Morfey has never been required to contribute to the cuss jar. 8 While I find that Friday did not originally intend to block Morfey’s exit from the office, clearly Friday decided not to move his chair to permit Morfey to leave the office, after everyone realized that the door was blocked. Friday admitted telling Morfey that he refused to move his chair. Morfey and Houston testified that Friday told Morfey that he would not move his chair. 9 The General Counsel offered evidence of pictures which show a slight dent in the door where the door slammed against the back of Friday’s chair. There was neither evidence that the door was repaired nor evidence of what the cost of repair would be. 10 At the trial, Houston admitted that the discussion about the policy being cowardly was “not a big issue at the time.” admitted that it was not his intention to recommend discipline for Morfey. According to Houston and Walcott, Walcott im- mediately decided to terminate Morfey. According to Houston and Walcott, at Houston’s request, Walcott agreed “to sleep on it.” Although Houston is Respondent’s director of human re- sources, there was no discussion of Respondent’s progressive disciplinary system which provided for an oral warning, written warning, suspension, and finally discharge. Based on demeanor and circumstantial evidence, I do not credit Walcott’s testimony. The demeanor of a witness may satisfy the trier of fact, not only that the witness’ testimony is not true, but that the truth is the opposite of his story. See, Walton Mfg. Co. v. NLRB, 369 U.S. 404, 408 (1962). While Houston made some significant admissions regarding his meet- ing with Friday and Morfey, I do not credit Houston’s testi- mony regarding his communications with Respondent’s man- agement, particularly Walcott. I find Houston was more con- cerned about supporting Walcott’s case against Morfey than he was interested in truthfully testifying as to the facts. Houston admitted that he was fearful of contradicting Walcott’s testi- mony. Walcott testified that after meeting with Houston, he met later that day with John Boyett, vice president of manufactur- ing, and Tom Moreton, supervisor in the prepress department.11 According to Walcott he had Houston report to Boyett and Moreton what had occurred between Houston, Friday, and Morfey. Walcott then suggested that Morfey be terminated. Houston again suggested that Walcott “sleep on it.” Walcott testified that he could not recall if he considered meeting with Morfey. He testified at the hearing that Morfey’s actions were not worth investigating although he admitted that in his 27 years as company president he had never heard of Morfey curs- ing or engaging in any misconduct. He even admitted that he did not expect such conduct to occur again. When questioned why he did not consider a lesser form of discipline, Walcott answered, “[S]omething had changed in Morfey and [Walcott] didn’t feel like it was worth continuing his employment with the company.” However, as noted above, Walcott did not have Morfey terminated and allegedly agreed to sleep on it. Alleg- edly Respondent’s management agreed to discuss the matter the following day. Boyett testified that shortly after the meeting in Walcott’s of- fice, Friday told him that he was scared to death of Morfey’s actions. Friday denied this testimony. According to Friday, he was not questioned about the office incident until a meeting in Walcott’s office on November 5, after Respondent became aware of Morfey’s union activities. On the evening of November 4, Morfey did some research on the internet regarding random drug testing. Thereafter, Mor- fey decided to seek the assistance of a union. That same eve- ning, Morfey submitted an electronic request for information concerning union organization from the Union. Then Morfey sent an e-mail to Houston and Respondent’s other management officials, including Walcott and Friday, notifying them that he had contacted the Union about organizing Respondent’s em- ployees. 11 Moreton is Friday’s immediate supervisor. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800 When Morfey returned to work on November 5, he placed a signed receipt for the employee handbook in Friday’s office. However, Morfey signed the receipt with the notation “U.D.” meaning “under duress.” Friday took the form to Houston who accepted it and thereafter spoke with Morfey. Friday tried to reassure Morfey that the testing procedure would be proper. Morfey asked Friday if Friday had received Morfey’s e-mail about union organizing. Friday said, “They are not going to let that happen. No way.” Morfey replied that since Houston had emphasized the legality of the drug-testing policy, Respondent should also understand that employees had the legal right to unionize. As Morfey was leaving, he stated, “Todd the next time something like that happens you better get out of my way.” Friday turned his back and waved Morfey off dismiss- ively. Between 8:30 and 9 a.m. on November 5, Walcott and Hous- ton met in Walcott’s office. Walcott had already received Mor- fey’s e-mail concerning union organization. Walcott admitted that Morfey’s e-mail was “another variable in the issue.” Ac- cording to Walcott he told Houston that he wanted to terminate Morfey the day before and still felt he had to. However, Wal- cott testified, “[B]ecause Morfey had mentioned the word un- ion, I knew that there are protections afforded employees and employers when the word ‘union’ is mentioned.” Therefore, according to Walcott, he instructed Houston to consult counsel. According to Houston he then contacted labor counsel. Friday testified that a couple of hours after his morning con- versation with Morfey, he told Boyett about Morfey’s statement that the next time, “Friday better get out of Morfey’s way.” Boyett and Friday later reported this conversation to Houston. Boyett reported this matter to Walcott who told Boyett that they would discuss the matter after lunch. After lunchtime, Walcott testified that he convened a meet- ing with Boyett, Moreton, Houston, and Friday. Walcott told the attendants that he wanted to terminate Morfey and asked if anyone objected. No one objected and Walcott directed Hous- ton to compose a letter terminating Morfey’s employment. At 3:30 p.m., Walcott, in the presence of Respondent’s man- agement officials and a city police officer, handed Morfey a termination letter. Walcott then read the letter. The letter re- ferred to the incident in Houston’s office and Morfey’s state- ment to Friday. The letter claimed Morfey stated that he was “forced” to sign a receipt for the handbook, that he would no longer work to his full potential and would not be the same employee. The letter claimed that Morfey, while wearing a gun holster, had threatened Friday. The letter concluded by stating that Morfey was terminated for damaging property and for “terroristic” threats to supervisors. At one point, Morfey inter- rupted and said, “Jim you know as well as I do that this is be- cause of the Union.” The General Counsel presented evidence that other employ- ees have engaged in similar conduct but received lesser disci- pline. Boyett admitted that he had witnessed employees in verbal confrontations with supervisors. In those incidents Boyett administered no discipline. In one instance, Boyett improperly grabbed another employee. That employee filed a police report over Boyett’s conduct. Houston investigated the matter and although he found Boyett’s conduct to be “inappro- priate,” Houston determined that no discipline was warranted. Walcott apparently followed this recommendation without comment. The General Counsel also presented evidence that in October 2000, an employee used profanity while shoving another em- ployee against a wall. The employee found at fault was only given a written warning. Respondent’s records show that the employee pushed the other employee over a truck. Walcott damaged his credibility by testifying that he believed Morfey’s conduct in this case was worse than that physical confrontation. The record also reveals that an angry employee confronted a supervisor in a dispute over a wage raise. The supervisor felt threatened and began wearing a panic button after the incident. Nonetheless, the employee involved was not issued any disci- pline. Finally, as mentioned earlier, profanity is widespread at Re- spondent’s facility. Respondent does not have a past practice of disciplining employees for using profanity. Friday testified that everyone in his department, with the exception of Morfey, has contributed to the cuss jar. Respondent offered evidence that two employees were ter- minated for causing damage to the door of a ladies’ restroom. However, Respondent’s records revealed that these employees were, in fact, discharged for sexual harassment, i.e., improperly entering the women’s bathroom. Respondent also introduced evidence of the discharge of an employee who was terminated for threatening a supervisor. That employee telephoned the supervisor at the supervisor’s home, stated he knew where the supervisor lived and threatened to go to the supervisor’s home and assault the supervisor and his family. Clearly, such con- duct is not comparable to that engaged in by Morfey. 2. Analysis a. The independent 8(a)(1) allegation On the morning after he notified Respondent that he was going to attempt to organize the employees, Morfey asked Friday if Friday had received Morfey’s e-mail about union organizing. Friday said, “They are not going to let that happen. No way.” Morfey replied that since Houston had emphasized the legality of the drug test, Respondent should also understand that em- ployees had the legal right to unionize. In determining the coerciveness of such a remark, the Board applies the objective standard of whether the remark reasonably tends to interfere with the free exercise of employee rights. The Board does not consider either the motivation behind the remark or its actual effect. Miller Electric Pump & Plumbing, 334 NLRB 824, 825 (2001); Joy Recovery Technology Corp., 320 NLRB 356, 365 (1995), enfd. 134 F.3d 1307 (7th Cir. 1998). Respondent, through Supervisor Friday, stated that it would not let the Un- ion in. This statement constitutes a threat of futility which would reasonably restrain and coerce employees in the exercise of their Section 7 rights. See, e.g., Commercial Erectors, 342 NLRB 940, 943 fn. 4 (2004) (prediction that company will not go union constitutes a threat of futility). b. The 8(a)(1) and (3) allegation In cases involving dual motivation, the Board employs the test set forth in Wright Line, 251 NLRB 1083, 1089 (1980), WELDON, WILLIAMS & LICK, INC. 801 enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB v. Transportation Management Corp., 462 U.S. 393, 399–403 (1983). Initially, the General Counsel must establish by a preponderance of the credible evi- dence that antiunion sentiment was a “motivating factor” for the discipline or discharge. This means that General Counsel must prove that the employee was engaged in protected activ- ity, that the employer knew the employee was engaged in pro- tected activity, and that the protected activity was a motivating reason for the employer’s action. Wright Line, supra, 251 NLRB at 1090. Unlawful motivation may be found based upon direct evidence of employer animus toward the protected activ- ity. Robert Orr/Sysco Food Services, 343 NLRB 1183, 1184 (2004). Alternatively, proof of discriminatory motivation may be based on circumstantial evidence, as described in Robert Orr/Sysco Food Services, supra: To support an inference of unlawful motivation, the Board looks to such factors as inconsistencies between the proffered reasons for the discipline and other actions of the employer, disparate treatment of certain employees compared to other employees with similar work records or offenses, deviations from past practice, and proximity in time of the discipline to the union activity. Embassy Vacation Resorts, 340 NLRB [846, 848] (2003). When the General Counsel has satisfied the initial burden, the burden of persuasion shifts to Respondent to show by a preponderance of the credible evidence that it would have taken the same action even in the absence of the employee’s pro- tected activity. If Respondent advances reasons which are found to be false, an inference that the true motive is an unlaw- ful one may be warranted. Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th Cir. 1966); Limestone Apparel Corp., 255 NLRB 722 (1981), enfd. 705 F.2d 799 (6th Cir. 1982). However, Respondent’s defense does not fail simply because not all the evidence supports its defense or because some evidence tends to refute it. Merrilat Industries, 307 NLRB 1301, 1303 (1992). Ultimately, the General Counsel retains the burden of proving discrimination. Wright Line, supra, 251 NLRB at 1088 fn. 11. Based upon a preponderance of the credible evidence, I find that General Counsel has sustained the initial burden of show- ing that Morfey’s union activity was a motivating factor for his discharge. Morfey was a 27-year employee of Respondent with an exemplary record. Businesses don’t normally discharge excellent, long-term employees without a legitimate business reason. There is little dispute that Morfey engaged in union activity and that Respondent was aware that Morfey was a un- ion sympathizer. Morfey’s discharge occurred the same day that Respondent received his e-mail announcing that he was engaged in union activities. Morfey was told by his immediate supervisor that Respondent was not going to let a union in and was fired that day. This timing is strong evidence that Respon- dent was motivated by union animus in its abrupt discharge of Morfey. See, e.g., Trader Horn of New Jersey, 316 NLRB 194, 198 (1995); Sawyer of Napa, 300 NLRB 131, 150 (1990). Respondent’s handbook states its lawful preference to re- main Union free. However, its handbook also states, [In families] black sheep are occasionally found. They are a discredit to a family and a business. If a helping hand fails to guide them along the right path, they are usually expelled from the family circle and are shunned by those who strive to preserve the better ways of life. Respondent’s specific animus for Morfey’s union activity, and its general animus against union activity, provides ample evidence that antiunion sentiment was a motivating reason for Respondent’s discharge of Morfey. The prima facie case is further buttressed by Respondent’s failure to follow its own employee handbook and its feeble attempts to compare Mor- fey’s conduct to other incidents of threats or violence. Respon- dent’s disparate treatment of Morfey compared to other em- ployees with similar work records or offenses adds to the strong prima facie case of discrimination. Realizing that Morfey had no prior record of discipline and that its own handbook pro- vided for an oral warning, Respondent attempted to mischarac- terize Morfey’s damage to its door. Further, Respondent at- tempted to mischaracterize Morfey’s attempt to leave Hous- ton’s office as violent and completely ignored the fact the Fri- day had purposefully blocked Morfey’s exit from the office. Even after Morfey asked Friday to move his chair, Friday re- fused to do so. Finally, after Morfey made an ambiguous com- ment about Friday having blocked his exit from Houston’s office, Respondent mischaracterized the comment as a “terror- istic” threat. Thus, the burden shifts to Respondent to establish that the same action would have taken place in the absence of the em- ployee’s union activities. Where, as here, the General Counsel makes out a strong prima facie case under Wright Line, the burden on Respondent is substantial to overcome a finding of discrimination. Eddyleon Chocolate Co., 301 NLRB 887, 890 (1991). An employer cannot carry its Wright Line burden sim- ply by showing that it had a legitimate reason for the action, but must “persuade” that the action would have taken place even absent the protected conduct. Centre Property Management, 277 NLRB 1376 (1985); Roure Betrand Dupont, Inc., 271 NLRB 443 (1984). In the instant case, Respondent contends that Morfey con- tacted the Union in an attempt to protect his job. There is no evidence that Morfey had any reason to suspect that his job was in jeopardy. Rather, the evidence shows that Morfey was con- cerned about random drug testing for himself and his fellow employees. He believed that he was making no progress with Respondent and, thus, sought union support. Respondent fur- ther contends that Walcott is too smart to discharge an em- ployee for union activity. I need not and do not credit that ar- gument. Walcott knew that Morfey was an excellent, long-time employee. Houston, his labor relations director, did not rec- ommend termination. Further, Houston’s knowledge that Fri- day had purposefully blocked Morfey’s exit is imputed to Wal- cott. The subject of the meeting was Morfey’s request to have the drug-testing policy reviewed. According to Respondent, Walcott had two meetings that day with his managers but Re- spondent offered no documentary evidence, no notes, that any meetings took place. Further, while Walcott and his managers contend that Walcott said he “would sleep on it,” there is no DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802 evidence that a tentative or final decision was made. Rather, Respondent’s witnesses admit that Morfey’s union activities were another “variable.” Thus, I find that Respondent did not persuade that Morfey would have been discharged absent his union activities. Rather, I find that Respondent’s mischaracterizations of the evidence buttress the prima facie case that Respondent discharged its employee Dale Morfey because of his union activities. CONCLUSIONS OF LAW 1. By threatening that the employer would not let the Union in, Respondent violated Section 8(a)(1) of the Act. 2. By discharging employee Dale Morfey, Respondent vio- lated Section 8(a)(1) and (3) of the Act. REMEDY Having found that the Respondent has engaged in certain un- fair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectu- ate the policies of the Act. Respondent having discriminatorily discharged Dale Morfey, it must offer him reinstatement and make him whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to date of proper offer of rein- statement, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as com- puted in New Horizons for the Retarded, 283 NLRB 1173 (1987). Respondent must also be required to remove any and all ref- erences to its unlawful discharge of Morfey from its files and notify Morfey 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). On these findings of fact and conclusions of law and on the entire record, I issue the following recommended12 ORDER The Respondent, Weldon, Williams & Lick, Inc., Ft. Smith, Arkansas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Threatening that it was futile for employees to support the Union because Respondent would not let the Union in. (b) Discharging employee Dale Morfey or any other em- ployee because he supported the Union or engaged in other concerted activities. (c) In any like or related manner restraining or coercing em- ployees in the exercise of the rights guaranteed them by Section 7 of the Act. 12 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. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Within 14 days from the date of this Order, offer Dale Morfey full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ously enjoyed. (b) Make Dale Morfey whole for any loss of earnings and other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the deci- sion. (c) Within 14 days from the date of this Order, remove from its files any reference to the unlawful discharge of Dale Mor- fey, and within 3 days thereafter notify him in writing that this has been done and that the discharge will not be used against him in any way. (d) Preserve and, within 14 days of a request, or such addi- tional time as the Regional Director may allow for good cause shown, provide at a reasonable place designated by the Board or its agents, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records, including an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (e) Within 14 days after service by the Region, post at its fa- cility in Fort Smith, Arkansas, copies of the attached notice marked “Appendix.”13 Copies of the notice, on forms provided by the Regional Director for Region 26, 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. Reason- able steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since November 2004. (f) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 13 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.”