Champion Home Builders Co.

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 350 NLRB No. 62 788 Champion Enterprises, Inc., d/b/a Champion Home Builders Co. and Carpenters Union Local No. 1109, affiliated with United Brotherhood of Carpenters and Joiners of America. Cases 32– CA–19152–1, 32–CA–19155–1, 32–CA–19181–1, 32–CA–19279–1, 32–CA–9344-1, 32–CA–19366– 1, 32–CA–19424–1, 32–CA–19587–3, 32–CA– 19587–4, 32–CA–19619–1, and 32–CA–19766–1 August 16, 2007 DECISION AND ORDER BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER AND WALSH On January 17, 2003, Administrative Law Judge Mary Miller Cracraft issued the attached decision.1 The Re- spondent filed exceptions and a supporting brief, and the Charging Party Union filed limited exceptions and a sup- porting 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 affirms the judge rulings, findings,2 and conclusions only to the extent consistent with this Decision and Order.3 I. INTRODUCTION The Respondent builds prefabricated homes at a plant in Lindsay, California. After an election, the Board certi- fied Carpenters Local No. 1109 (the Union) as the collec- tive-bargaining representative of the Respondent’s pro- duction and maintenance employees on April 10, 2001.4 The parties began negotiations on July 23 and held 16 bargaining sessions, but were unable to reach an agree- ment. On April 18, 2002, the Respondent withdrew rec- ognition from the Union based on an employee petition it had received the day before, signed by a majority of unit employees, stating that the bargaining unit employees no longer desired union representation. 1 The judge issued an erratum modifying the remedy, recommended Order, and notice on January 29, 2003. 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. 3 We also modify the judge’s recommended Order to correct the judge’s inadvertent failure to provide a make-whole remedy for all the employees whom the Respondent unlawfully laid off for 1 day and to correct par. 2(c) of her recommended Order in accordance with Indian Hills Care Center, 321 NLRB 144 (1996), and Excel Container, Inc., 325 NLRB 17 (1997). 4 All dates are in 2001, unless otherwise specified. The judge found that the Respondent committed sev- eral violations of Section 8(a)(1) and (5), including unlawfully withdrawing recognition from the Union.5 For the reasons stated in the judge’s decision, we adopt her findings that the Respondent violated Section 8(a)(1) by confiscating union materials from one employee’s workstation, and by telling an employee that the Union’s picketing of its dealer would force the Respondent out of business.6 For the reasons stated in the judge’s decision, we also adopt her finding that the Respondent violated Section 8(a)(5) by failing to provide the Union with in- formation requested on February 11, 2002.7 And, for the 5 There are no exceptions to the judge’s dismissals of allegations that the Respondent violated Sec. 8(a)(1) by: (1) engaging in surveillance or creating the impression of surveillance; (2) demanding to see docu- ments that a known union supporter was placing in his lunch box and telling him that he could not pass out such materials at work; (3) giving an employee extra work to perform and otherwise harassing him be- cause of his union activities; and (4) denying two employees who were on workers’ compensation access to its lunchroom; and violated Sec. 8(a)(5) by refusing the Union’s request for its financial records. 6 Member Schaumber notes that the Respondent’s exceptions to this latter finding challenge only the judge’s credibility resolution. In light of the limited nature of the exceptions and absent any basis for revers- ing the judge’s credibility resolution, Member Schaumber affirms the judge’s finding. 7 We agree with the judge that the information the Union requested on February 11, 2002: “A copy of any company policy or procedure with respect to handling customer complaints” was relevant, and that the Respondent violated Sec. 8(a)(5) by refusing to provide it. As found by the judge, when the Union learned that the Respondent had a quality control program, it requested the Respondent’s complaint policy in order to determine whether there was any follow-through on cus- tomer complaints that might result in employee discipline. In addition, the Union sought the information because it wanted to explore forming a quality committee. Contrary to our dissenting colleague, we do not find that this clearly relevant information need not be produced based on the Respondent’s verbal assertions that—“[a]s far as we can tell”—no employee previ- ously had been disciplined based on customer complaints, and that it “likely” would not discipline employees based on customer complaints. The Union was not obligated to rely on this equivocal response; it was entitled to evaluate the policy to make its own determination both as to its potential effect on employee discipline, and in order to formulate its quality control proposal. Further, in “information” cases of this kind, the issue is not whether the employer has acted in bad faith or whether its motive was to avoid production. The issue is whether relevant information was not sup- plied. Where, as here, it was not supplied, the Union need not make a second request. Member Schaumber would not find that the Respondent violated Sec. 8(a)(5) by failing to provide the information. The Union requested copies of any company policy or procedure for handling customer complaints for the stated purpose of determining whether employees would be subject to discipline as a result of such complaints. In re- sponse, Hugh Beswick, the Respondent’s vice president of human resources, replied on February 21 that “[a]s far as we can tell, there has never been any disciplining of individuals as a result of customer com- plaints. In practice, it would be extremely difficult to know which individuals were performing specific work.” Although the Respondent, in its response, did not produce the documents sought, Beswick specifi- CHAMPION HOME BUILDERS CO. 789 reasons set forth below, we adopt the judge’s finding that the Respondent violated Section 8(a)(5) by laying off a majority of the unit employees for 1 day without notify- ing and bargaining with the Union.8 However, for the reasons stated below, we reverse the judge’s findings that the Respondent solicited employees to report to management the names of prounion employ- ees “who bother them, [or] make crude or insulting re- marks,” and violated Section 8(a)(1) by soliciting em- ployees to report prounion employees who “interfere with their ability to work.” In addition, for the reasons stated below, we reverse the judge’s finding that the Re- spondent violated Section 8(a)(5) by withdrawing recog- nition from the Union.9 II. UNFAIR LABOR PRACTICES A. Alleged Solicitation of Employees to Report Prounion Employees’ Conduct On October 12, the Respondent’s plant manager, Jim Stewart, gave a speech to employees that included the following statements: In recent weeks, I have had complaints from em- ployees about co-workers bothering them to try and get them to join or support the union. I have heard that some employees are being told that if they don’t join the union, they will be fired. I have also heard reports of employees making crude and very insult- ing statements about co-workers with whose views they disagree. I want to talk about this. Each of you has the right to decide for yourself if you want to join the union. Our Company respects that right. Employees also have the right to try to convince each other that they should or should not support the union. We respect that right too. But, employees do not have the right to interfere with the work of their co-workers, whether they are cally addressed the Union’s concerns by stating that, to the best of his knowledge, the Respondent had not disciplined and likely would not discipline any employee because of customer complaints. There is no evidence that the Respondent was seeking to avoid production of the requested information or otherwise acted in bad faith. If the Union deemed this reply to be inadequate, it could have sought amplification of the Respondent’s answer. Yet, the Union did not make any further request on this subject. Based on this silence, the Respondent could reasonably believe its answer was sufficient and satisfied the Union’s request. For these reasons, Member Schaumber would find no viola- tion. 8 We also agree with the judge’s additional findings related to the unlawful layoff. See fn. 15 below. 9 We therefore reverse the judge’s findings that the Respondent fur- ther violated Sec. 8(a)(5) by granting a unitwide wage increase the day after its withdrawal of recognition and by failing to provide information requested by the Union on February 14, April 22, and May 15, 2002. talking about the union or about baseball. And they certainly do not have the right to threaten someone because of his or her position on the Union. I cannot prohibit your co-workers from talking to you about the union issue. Frankly, each of you has the right to express your opinions on the union to each other. People have the right to argue for their position. An employee has the right to say to his co- worker or employee: “you will someday wish you had supported the union.” Because that is just a matter of opinion. However, no one has the right to threaten a co-worker with harm if he or she does not support the union. So, if someone is interfering with your ability to do your work, let your foreman know. We will put a stop to it. If someone is threatening you with harm or say- ing that you are going to lose your job if you don’t join the Union, let your foreman know. We will put a stop to it. [Emphasis in original.] The judge interpreted Stewart’s speech as soliciting employees to report on union supporters’ activities whenever they subjectively believed that they were being “bothered,” “insulted,” or “interfered with.” While she concluded that the speech was open to varying interpreta- tions, she held that the Respondent, as the author, had to bear the burden of any ambiguities in its content. Noting that the Board has determined that asking employees to report “threatening” behavior is not unlawful, the judge nonetheless found, and our dissenting colleague agrees, that the speech as a whole solicited reporting on “lawful as well as unlawful activities” and thereby violated Sec- tion 8(a)(1). We find to the contrary. In our view, both the judge and the dissent read out of context Stewart’s statements about employees “bother- ing” their coworkers and making “crude and very insult- ing statements.” Stewart plainly did not instruct employ- ees to report when they felt subjectively bothered or in- sulted by union supporters’ activities. Instead, he simply repeated complaints employees made to him regarding the conduct of union supporters. The only things Stewart asked employees to report were “if someone is interfer- ing with your ability to do your work” or “if someone is threatening you with harm or saying that you are going to lose your job if you don’t join the Union.” Neither of these requests violated the Act. It is well established that in the interest of maintaining production and workplace discipline, employers can pro- hibit activity that interferes with work or which causes DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 790 neglect of job performance.10 We find that Stewart’s use of the phrase “interfering with your ability to do your work” encompassed only unprotected activity and was sufficiently specific that the employees would reasonably understand its meaning, particularly when read in context with the balance of the speech.11 Thus, the Respondent did not violate the Act by advising employees to report conduct that interfered with their work. Similarly, Stew- art asked employees to report threats. It is well settled that an employer may lawfully assure employees that it will not allow them to be threatened, and it may ask them to report such conduct because threats directed at em- ployees are properly within the Respondent’s legitimate concerns.12 Stewart’s speech thus asked only that em- ployees report unprotected conduct to management. Such requests do not reasonably tend to chill employees in the exercise of their Section 7 rights. On the contrary, they assist in assuring employees the free exercise of those rights. 10 See, e.g., Horton Automatics, 289 NLRB 405, 409 (1988) (“[T]he Act does not prevent an employer . . . from making and enforcing rea- sonable rules addressing employees[’] conduct during worktime.”) (Citation omitted.); Tartan Marine Co., 247 NLRB 646, 655 (1980) (“An employer has a right to see to it that its employees continue to engage in their normal, productive work activity, union or no union.”), enfd. in part and enf. denied in part mem. 644 F.2d 882 (4th Cir. 1981). 11 The dissent maintains that we have not considered the total con- text of Stewart’s speech, and have effectively ignored the references in Stewart’s opening remarks about having received complaints that em- ployees were “bothering” their coworkers and making “crude and very insulting statements.” The dissent reasons that employees listening to Stewart’s speech would reasonably believe that Stewart’s later state- ment about informing “your foreman” referred back to his opening remarks, which encompassed the reporting of protected activities. We respectfully disagree. Our dissenting colleague parses too thinly Stew- art’s words, and skips over the entire text between Stewart’s opening and his request to employees. After initially repeating complaints that had been received from employees, Stewart took care to clearly explain the employees’ right to support the Union, express their views about the Union, solicit other employees’ support of the Union, and even to argue on behalf of the Union with their coworkers. Only thereafter, did he make a specific and limited request that employees report unprotected conduct. Thus, we have considered the speech as a whole, and the specific opening statements in their proper context, and we find that they cannot be reasonably read to convey the message advocated by the dissent. 12 See Ithaca Industries, 275 NLRB 1121, 1126 (1985) ( it was law- ful for an employer to tell employees that they should report coworkers who “intimidate” them while soliciting cards); Liberty Nursing Homes of Lynchburg, 245 NLRB 1194, 1196–1197 (1979) (Board distin- guished between employer’s lawful conduct in asking employees to report threats and its unlawful conduct in seeking reports of harass- ment); First Student, Inc., 341 NLRB 136 (2004) (employer’s request to report incidents where employees were confronted and forced or intimidated into supporting the union was lawful); Cf. Arcata Graphics, 304 NLRB 541 (1991) (employer’s request that employees report “abu- sive treatment” unlawful because not limited to matters such as threats properly within the employer’s legitimate concerns). Tawas Industries, 336 NLRB 318 (2001), and CMI- Dearborn, Inc., 327 NLRB 771 (1999), relied on by the judge in support of her finding that the speech was unlawful, are not to the contrary. Tawas involved an employer’s statement that if “employees feel [that] they are being subjected to threats and coercion” because of the “express[ion of] their views” on union affiliation, the respondent would “take the appropriate action.” 336 NLRB at 322. CMI-Dearborn involved an employer request to report any “threats, coercion or scare tactics used by the union pushers.” 327 NLRB at 775. In each case, the focus was on the use of the word “coercion” (and in CMI-Dearborn on “scare tactics” also) as the basis for the violation. The Respondent used no such words here.13 Moreover, in this case, unlike in Tawas, the Respon- dent explicitly affirmed that it would respect the right of employees to solicit (and even argue) for the Union. Indeed, Stewart’s speech indicated that employees “have the right to try to convince each other that they should or should not support the union” and that employees “ha[ve] the right to express [their] opinions on the union to each other” and “the right to argue for their position.” In contrast, the employer in Tawas merely stated that the 13 In addition, Chairman Battista believes that Tawas and CMI in- volved situations where, according to the Board’s findings, employees were asked to report conduct which they “felt” or “subjectively re- garded” as coercive. See Tawas, at .312 for its discussion of the two cases. Further, the employer in CMI told employees that they had a “right to be left alone.” See CMI at 775. Thus, in both cases, there was a danger that employees would reasonably believe that they should report if they subjectively felt coerced or indeed (in CMI) if they were simply being solicited. Those facts are not present here. The employer told employees to report threats and interferences with work. The employer expressly stated that employees could talk to each other about the union. In these circumstances, Chairman Battista does not believe that the employees here would reasonably believe that a non- threatening appeal to join the union should be reported. Because the employer’s language in Winkle Bus Co., 347 NLRB 1203 (2006), was not couched in subjective terms, Chairman Battista dissented from the finding of a violation in Winkle Bus. Member Schaumber found a violation in Winkle Bus only because he viewed Tawas and CMI as relevant and controlling Board authority. Because Winkle Bus, like Tawas, involved an employer’s request that employees report union threats or coercion, Member Schaumber finds Winkle Bus distinguishable. Member Schaumber disagrees with the Board’s analysis in Tawas Industries and CMI-Dearborn and would overrule those cases to the extent they hold an employer violates Sec. 8(a)(1) when, in response to reports of threats and coercion of employees, the employer issues a facially neutral prohibition against such conduct and/or requests that employees report such conduct to management and/or the Board. In Member Schaumber’s view, the term “coercion,” which appears in the statute, is not so inherently ambiguous that employees would reasona- bly construe it to apply to Sec. 7 protected activities. He believes the Board should reconcile its divergent precedent in this area and issue clear guidelines for the Board’s constituents to follow. CHAMPION HOME BUILDERS CO. 791 Act protected the employees’ right to express their views on the Union. In sum, we find that Stewart’s speech taken as a whole did not solicit reports of employees’ protected Section 7 activities, but only sought information regarding in- stances in which union solicitors interfered with plant production or made unprotected threats of harm and job loss. Accordingly, we do not find that Stewart’s speech violated Section 8(a)(1) and we dismiss this complaint allegation. B. Employee Layoffs On October 18, Stewart announced to employees that most of the bargaining unit would not work the following day.14 That layoff lasted 1 day. Stewart did not provide the Union with notice or with an opportunity to bargain about the temporary layoff or the selection of employees for the 1-day layoff. We agree with the judge that the Respondent had an obligation to notify and bargain with the Union prior to the layoff, and that the Respondent violated Section 8(a)(5) by failing to provide the Union with an opportu- nity to bargain about the layoff before it was imple- mented.15 The layoff of unit employees is a change in terms and conditions of employment over which an em- ployer generally must bargain. See Tri-Tech Services, 340 NLRB 894 (2003) (and cases cited therein). The Respondent argues that the October 18 layoff was not a unilateral change over which it was required to bar- gain because the layoff was consistent with its past prac- tice of employee layoffs. However, the sole evidence of past practice adduced by the Respondent relates to two plant shutdowns in 2001. We find that these two in- stances of layoffs associated with plant shutdowns are insufficient to establish a generalized past practice of layoffs in response to slowdowns in work, particularly when Stewart admitted that the Respondent faced a shortage of work orders nearly every day. In sum, the paucity of evidence submitted in this case is insufficient to demonstrate a discernable and consistent past practice regarding the implementation of temporary layoffs. Thus, we conclude that the Respondent unlawfully failed to bargain over the layoff as required by the Act.16 14 The Respondent requested that some employees report for work on October 19 to perform maintenance or complete work on homes already under construction. 15 We also agree with the judge’s additional findings related to the unlawful layoff—that the Respondent violated Sec. 8(a)(5) by failing to provide the Union with notice and an opportunity to bargain regarding the announcement of the shutdown of the plant, selection of employees for work during the shutdown, and performance of bargaining unit work by supervisors. 16 Because the Respondent failed to prove its past practice defense, Chairman Battista and Member Schaumber find it unnecessary to reach C. Withdrawal of Recognition On April 17, 2002,17 the Respondent received a peti- tion, signed by 89 of the 167 bargaining unit employees, stating that they no longer desired union representation. The Respondent withdrew recognition the following day. Consistent with Board precedent that no party challenges in this proceeding, the judge concluded that the Respon- dent’s withdrawal was based on evidence that the Union actually lost majority support.18 However, an employer may not lawfully withdraw recognition from a union where it has committed unfair labor practices that are likely to affect the union’s status, cause employee disaf- fection, or improperly affect the bargaining relationship. Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1996) (Lee Lumber II), enfd. in relevant part and remanded in part 117 F.3d 1454 (D.C. Cir. 1997). Not every employer unfair labor practice will taint evidence of a union’s subsequent loss of majority support. In cases such as this one, where the unfair labor practices do not involve a general refusal to recognize and bargain with the union, “there must be specific proof of a causal rela- tionship between the unfair labor practice[s] and the en- suing events indicating a loss of support.” Id. In deter- mining whether a causal relationship exists between un- remedied unfair labor practices and the loss of union support, the Board considers the following factors: (1) the length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the viola- tions, including the possibility of a detrimental or lasting effect on employees; (3) the tendency of the violation to cause employee disaffection; and (4) the effect of the unlawful conduct on employees’ morale, organizational activities, and membership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). Considering these fac- tors, we find that the unlawful conduct here was insuffi- cient to taint the petition. First, all but one of the violations occurred long before the employee petition was signed and Respondent with- drew recognition in April 2002. Thus, the Respondent’s confiscation of union materials from an employee’s workstation occurred in October, the Respondent’s fail- ure to bargain involved a 1-day layoff in October, and Plant Superintendent Scott’s threat to employee Sahagun that the Union’s picketing of the Respondent’s dealer would force the Respondent out of business occurred in November. All of these violations occurred between 5 to the legal issue of whether a well-established, consistent, past practice regarding layoffs prior to the advent of the Union would have excused the Respondent’s obligation to bargain with the Union regarding the layoff here. 17 All dates hereafter are in 2002, unless otherwise specified. 18 Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 792 6 months before the petition and withdrawal of recogni- tion. Thus, we find that these incidents were too remote in time to have caused the employees’ disaffection with the Union. See, e.g., Quazite Corp., 323 NLRB 511, 512 (1997) (withdrawal of recognition was lawful because the findings of unfair labor practices, which occurred 6 months before the employees’ disaffection from the Un- ion, were too remote in time to have caused the employ- ees’ disaffection from the union).19 Although the Re- spondent’s refusal to provide information in response to the Union’s February 11, 2002 request occurred closer in time to the employee disaffection, there was no evidence that the unit employees knew of this violation at the time they signed the petition. Accordingly, this factor does not support finding a causal relationship between the unfair labor practices and employee disaffection. Second, we do not find that the nature of the violations supports a finding of taint. The Respondent’s confisca- tion of union materials from an employee workstation and Plant Superintendent Scott’s threat to employee Sa- hagun were isolated events involving one employee each. The General Counsel presented no evidence of dissemi- nation to any other employees. As to the Respondent’s refusal to provide information requested on February 11, as discussed above, there is no evidence that employees learned of this refusal before expressing their disaffec- tion. 19 We find that Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006); Penn Tank Lines, 336 NLRB 1066 (2001); and Williams Enterprises, 312 NLRB 937 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995), on which the dissent relies are distinguishable. In each of these cases, the violations as described by the Board were of a more serious nature and were disseminated throughout the bargaining unit. In Beverly Health, the violations included the employer’s denying union represen- tatives access to the employees’ facility, removal of bulletin boards that were used by the union to communicate with employees, unilateral reduction in the number of work hours of some unit employees, and changing of rules regarding vacation scheduling. Id., at 29. The em- ployer also reduced the hours of an employee and terminated another employee because of her union support. In Penn Tank Lines, the em- ployer unilaterally reduced the waiting-time and lost-time pay for driv- ers less than a month before the withdrawal of recognition. Id. at 1067. In addition, the employer unlawfully discharged an employee approxi- mately 5 months before the withdrawal of recognition. In finding the employer’s withdrawal of recognition unlawful, the Board reasoned that the passage of time did not diminish the impact of the employer’s conduct, noting “that the discharge of an active union supporter is exceptionally coercive and not likely to be forgotten. . . . This unlawful conduct ‘goes to the very heart of the Act,’ and reinforces the employ- ees’ fear that they will lose employment if they persist in union activ- ity.” (Internal citations omitted). Id. at 1067–1068. In Williams Enter- prises, 4 months prior to the employees’ decertification effort, a man- ager informed employees the plant was closing, which employees had been selected for possible employment at the reopened plant, and that it intended to operate the new plant as a nonunion plant. On an amalgam of facts not present here, a Board panel majority found the remarks tainted the later decertification effort. . Third, there is no showing that the unlawful conduct had a tendency to cause employee disaffection toward the Union. At the time of the withdrawal of recognition, the Respondent had met and bargained with the Union on 16 occasions. There is no allegation or evidence that the Respondent engaged in bad-faith bargaining in those negotiations. Further, the violations occurred long be- fore the employee petition and—except for the layoff— were isolated and/or unknown by most employees. As to the layoff, because it lasted only 1 day, and occurred 6 months before the petition, we do not find that it would have a lasting and negative impact on employees’ sup- port for the Union. The dissent states that the Respondent’s unfair labor practices were of a serious nature. Acknowledging that two of the violations were isolated, it focuses on the 1- day layoff and attendant actions, and Stewart’s speech in October. However, as we have discussed above, we do not find that Stewart’s speech violated Section 8(a)(1). Further, while the dissent is correct in noting that the 1- day layoff affected the entire bargaining unit, it was an isolated and brief event that occurred 6 months before the petition. Thus, we do not find that it would have a lasting detrimental effect on employees and diminish support for the Union. Finally, there is no evidence that the foregoing unlaw- ful conduct, occurring 5–6 months before the petition was signed, had an effect on employee morale, organiza- tional activity or membership in the Union. Conse- quently, we reverse the judge and find that the Respon- dent lawfully withdrew recognition from the Union on April 18.20 D. Refusals to Provide Requested Information The Union, by letter of February 14, requested copies of all personnel documents relating to absenteeism over the past 3 years. By letter dated March 6, the Respon- dent agreed to provide this information. The Respondent also informed the Union in the letter that “[b]ecause of the clerical time it will take to gather this information, 20 See Garden Ridge Management., Inc., 347 NLRB 131, 135–136 (2006) (employer’s withdrawal of recognition was lawful where the unlawful conduct—the employer’s refusal to schedule additional bar- gaining sessions—ended 5 months before the decertification petition was presented to the employer, the nature of the violation did not evi- dence taint, and there was no evidence that the unlawful conduct had a tendency to cause employee disaffection toward the union or had an effect on employee morale, organizational activity, or membership in the union). Having found that the Respondent lawfully withdrew recognition from the Union on April 18, we find it unnecessary to pass on the judge’s remedy to include an affirmative bargaining order and the Union’s exception urging the Board to require bargaining for at least 1 year. CHAMPION HOME BUILDERS CO. 793 we anticipate that we will not have it before April 20th 2002.”21 The Union did not object to this proposed time- frame. The Respondent did not provide the information before it withdrew recognition on April 18. Following a lawful withdrawal of recognition, an em- ployer no longer has a duty to provide a union with re- quested information.22 The Respondent’s lawful with- drawal of recognition from the Union occurred 2 days before the earliest date on which the Respondent stated that it would have the requested information and obvi- ated the Respondent’s duty to furnish it. Accordingly, we reverse the judge’s finding that the Respondent vio- lated Section 8(a)(5) by failing to provide the informa- tion. The Union made separate written requests, on April 22 and May 15, seeking information relevant to collective bargaining. The Respondent denied these requests based on its withdrawal of recognition. Because we find that the Respondent lawfully withdrew recognition before the Union made these information requests, there was no duty to furnish any of this information. Accordingly, we reverse the judge’s finding that the Respondent violated Section 8(a)(5) by failing to respond to these information requests.23 E. Wage Increase On April 19, the Respondent announced a wage in- crease for all the unit employees. As found above, the Respondent lawfully withdrew recognition from the Un- ion the previous day. This withdrawal extinguished the Respondent’s bargaining obligation. Accordingly, we reverse the judge’s finding that the wage increase consti- tuted a unilateral change violating Section 8(a)(5).24 ORDER The National Labor Relations Board orders that the Respondent, Champion Enterprises, Inc., d/b/a Cham- pion Home Builders Co., Lindsay, California, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Confiscating union materials from an employee workstation. (b) Stating to an employee that by picketing the Re- spondent’s distributor, employees were going to force the Respondent out of business. 21 The judge mistakenly indicated that the Respondent’s letter stated that it would provide the information in about 6 weeks, i.e., by about April 17. 22 See Renal Care of Buffalo, Inc., 347 NLRB 1284, 1286 (2006). 23 Id. 24 Lexus of Concord, Inc., 343 NLRB 851, 855 fn. 16 (2004), and cases cited therein. (c) Announcing to all employees that it would shut down because of lack of work, laying off a majority of unit employees, selectively recruiting other unit employ- ees to perform unit work, and utilizing nonunit personnel including foremen to perform unit work during the lay- off, without first notifying the Union and without afford- ing the Union an opportunity to bargain. (d) Refusing to provide information to the Union pur- suant to its request of February 11, 2002. (e) 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) Furnish the Union with the information it requested on February 11, 2002. (b) Make whole all the employees who were laid off on October 19, 2001, for any loss of earnings and other benefits they may have suffered as a result of their unlawful 1-day layoff, less any net interim earnings, plus interest. (c) Within 14 days after service by Region 32, post at its facility in Lindsay, California, copies of the attached notice marked “Appendix.”25 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 by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the no- tices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Re- spondent 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 October 4, 2001. (d) 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 that the Respondent has taken to comply. MEMBER WALSH, concurring in part and dissenting in part. 25 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 794 Contrary to my colleagues, I would adopt the judge’s unfair labor practice findings in their entirety. Thus, I join my colleagues in adopting the judge’s findings that the Respondent unlawfully confiscated union surveys from an employee and threatened employees that their protected picketing activity would force the Respondent out of business. I also agree that the Respondent com- mitted four separate violations of its duty to bargain re- lated to its October 19 layoff of unit employees, though I write separately to emphasize that the Respondent’s past practice defense to those violations is irrelevant. Unlike my colleagues, however, I would affirm the judge’s addi- tional findings that the Respondent unlawfully (1) solic- ited employees to report the protected activities of other employees to management, (2) withdrew recognition from the Union on April 18, 2002, and, after that time, (3) refused to comply with the Union’s information re- quests, and (4) unilaterally imposed a wage increase. Those findings are based on well-established principles and undisputed facts, and I find no basis to reverse them. I. THE SOLICITATION OF EMPLOYEES TO REPORT THE PROTECTED ACTIVITIES OF OTHER EMPLOYEES TO MANAGEMENT Contrary to my colleagues, the judge correctly found that the Respondent violated Section 8(a)(1) on October 12 when Plant Manager Jim Stewart solicited employees to report the protected union activities of other employ- ees to management. On that date Stewart read a written statement to employees, which, by its terms, was a re- sponse to “complaints from employees about co-workers bothering them to try and get them to join or support the union” as well as “reports of employees making crude and very insulting statements about co-workers with whose views [about the Union] they disagree.” The statement additionally encouraged each employee to tell his foreman if someone was “interfering with your ability to do your work” or “threatening you with harm.”1 Es- tablished Board precedent fully supports the judge’s finding of a violation. “It is well settled that the Act allows employees to en- gage in persistent union solicitation even when it annoys or disturbs the employees who are being solicited.” Ry- der Transportation Services, 341 NLRB 761, 761 (2004), enfd. 401 F.3d 815 (7th Cir. 2005). In turn, employers violate Section 8(a)(1), “when they invite their employ- ees to report instances of fellow employees’ bothering, pressuring, abusing, or harassing them with union solici- tations.” Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998). Such invitations “chill even legitimate union 1 The full text of Stewart’s written statement is set out by the major- ity and in the judge’s decision. solicitations, which do not lose their protection simply because a solicited employee rejects them and feels ‘bothered’ or ‘harassed’ or ‘abused.”’ Id. Therefore, an employer’s invitation to report the activities of other em- ployees is unlawful if it is “broad enough to cover mere attempts by union proponents to persuade employees,” or “so vague as to invite employees generally to inform on fellow workers who were engaged in union activity.” Liberty House Nursing Homes, 245 NLRB 1194, 1197 (1979). Significantly, even where an employer also en- courages employees to report others who “threaten” them, the Board has instructed that the employer’s invita- tion must be viewed “as a whole.” See Greenfield Die, supra at 238. Here, the judge properly found that Stewart’s speech, viewed in its “total context,” contained an unlawful invi- tation to report protected activity to management. In particular, the judge appropriately relied on the refer- ences Stewart made in his opening remarks about having received complaints that some employees were “bother- ing” their coworkers “to try and get them to join or sup- port the union” and harassing other employees by “mak- ing crude and very insulting statements about coworkers” with whom they disagreed. Stewart followed those re- marks by declaring, “I want to talk about this.” Accord- ingly, Stewart’s express reason for speaking with the employees was to address complaints that included those matters. Given that emphasis, and that Stewart failed to explain what he meant by “bothering” coworkers, or “making crude and very insulting statements about co- workers” in the context of the union organizing cam- paign, employees listening to the speech could reasona- bly believe that Stewart’s later repeated instruction, to “let your foreman know,” included the reporting of such protected activities whenever they felt subjectively both- ered, insulted, or interfered with. Accordingly, the judge correctly found that Stewart’s statement invited employ- ees generally to inform on fellow workers’ protected activities, and thereby violated Section 8(a)(1). See Tawas Industries, 336 NLRB 318, 322 (2001); CMI- Dearborn, Inc., 327 NLRB 771, 775–776 (1999). Reversing the judge’s finding of an unlawful solicita- tion, my colleagues claim that the judge “took out of context” Stewart’s statements about employees “bother- ing” their coworkers and making “crude and very insult- ing remarks,” asserting that Stewart “did not expressly instruct employees to report when they were bothered or insulted” but was “simply repeating complaints employ- ees made to him.” In fact, it is my colleagues who have taken those statements out of context; indeed, they have effectively taken them out of Stewart’s speech altogether. Stewart’s references to reports of employees “bothering” CHAMPION HOME BUILDERS CO. 795 their coworkers and making “crude and very insulting remarks” clearly illustrated for employees the type of conduct he was concerned about. It would have been entirely reasonable for the employees to then interpret the remainder of Stewart’s remarks with those examples in mind. By dismissing Stewart’s express references to those examples, my colleagues have deviated from the Board’s usual course of considering the total context in which an employer invites employees to report employee activities to management, along with all relevant sur- rounding circumstances. See, e.g., Greenfield Die & Mfg. Corp., 327 NLRB at 238 (“letter taken as a whole” was unlawful, despite being a statement against “threat- ening and coercing” coworkers). My colleagues also err by relying on Stewart’s state- ments that the employees have the right to solicit and argue on behalf of the union. The presence of lawful statements does not mitigate the impact of an unlawful solicitation requesting that employees report the pro- tected activities of other employees to management. See, e.g., Liberty House Nursing Homes, 245 NLRB at 1197 (finding both lawful and unlawful invitations to report coworkers’ activities). Indeed, in Tawas Industries, the Board found that the employer unlawfully solicited em- ployees to report other employees’ protected activities based on the total context in which the communication was made, and despite the employer’s statements that “employees have the right to support or not support the union,” and “have the right to express” their views on unionization. 336 NLRB at 322. For all of these reasons, I would adopt the judge’s finding that the Respondent violated Section 8(a)(1) by soliciting employees to report the protected activities of other employees to management. II. THE UNILATERAL LAYOFF OF THE MAJORITY OF UNIT EMPLOYEES, AND RELATED UNLAWFUL ACTIONS On October 18, 2 weeks after confiscating union mate- rial from an employee, and less than 1 week after unlaw- fully soliciting its employees to report the protected ac- tivities of their coworkers, Plant Manager Stewart unex- pectedly announced to the employees that its Lindsay facility would be shut down on Friday, October 19, and possibly Monday, October 22, and they would all be laid off. Following that meeting, the Respondent in fact uni- laterally laid off a majority of unit employees from work on October 19, but selectively recruited a few employees to work that day, and also employed foremen and super- visors to perform the unit employees’ work. The Re- spondent took all of those actions without prior notice to the Union and without affording the Union an opportu- nity to bargain about those decisions or their effects on unit employees. My colleagues affirm the judge’s findings that the Re- spondent’s failure to provide the Union with notice and the opportunity to bargain over the shutdown of the plant, the layoff of unit employees, the selection of unit employees for work during the shutdown, and the per- formance of bargaining unit work by supervisors each constituted a separate violation of Section 8(a)(5) and (1) of the Act. I agree with those findings, but only for the reasons given by the judge. In upholding the judge’s findings, my colleagues— although not reaching the issue substantively—attach some significance to the Respondent’s affirmative de- fense asserting that it lawfully could take such actions based on a theory of past practice. I would not entertain such a defense. Under Board precedent, the Respon- dent’s assertion of a past practice concerning the unlaw- ful layoffs and related actions is irrelevant to its duty to bargain with the Union. The Board has long held, with court approval, that despite a past practice of instituting economic layoffs, an employer cannot continue to unilat- erally exercise its discretion to layoff unit employees after the Board has certified a union to represent the unit employees. See Adair Standish Corp., 292 NLRB 890 fn. 1 (1989), enfd. in relevant part 912 F.2d 854, 864– 865 (6th Cir. 1990); Falcon Wheel Division, 338 NLRB 576, 576–577 (2002) (same). III. THE UNLAWFUL WITHDRAWAL OF RECOGNITION On April 18, the Respondent withdrew recognition from the Union based on an employee petition signed by a simple majority of 89 of the 167 unit employees. The judge, however, found that the petition was tainted based on the Respondent’s unfair labor practices, and that therefore the Respondent’s withdrawal of recognition violated Section 8(a)(5) and (1). The majority reverses that finding, in part, because it also reverses the judge’s finding that the Respondent unlawfully solicited employ- ees to report the protected activities of other employees to management in its October 12 speech. Because I would affirm the unlawful solicitation finding, and be- cause the majority fails to give the appropriate weight to the other pre-withdrawal unfair labor practices, or to properly apply the relevant factors under Master Slack Corp., 271 NLRB 78 (1984), I disagree and would find that the employee petition was tainted and, consequently, that the Respondent’s April 18 withdrawal of recognition was unlawful. An employer may not withdraw recognition from a un- ion in the wake of unremedied unfair labor practices that have the tendency to cause employee disaffection from the union. See RTP Co., 334 NLRB 466, 468 (2001), enfd. 315 F.3d 951 (8th Cir. 2003). The Board examines the following factors to determine if a causal connection DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 796 exists between the unremedied unfair labor practices and the subsequent expression of employee disaffection from the union: “(1) [t]he length of time between the unfair labor practices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their detrimental or lasting effect on employees; (3) any possi- ble tendency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on em- ployee morale, organizational activities, and membership in the union.” Master Slack Corp., 271 NLRB at 84. The necessary causal connection is present here, and warrants the finding that the Respondent’s withdrawal of recognition was unlawful. With regard to timing, the Respondent withdrew rec- ognition on April 18, 2002, 6 months after it began committing unfair labor practices in October 2001. Given the nature of the unremedied unfair labor prac- tices, that 6-month period of time is insufficient to dimin- ish the lasting effects of the Respondent’s unlawful con- duct on the employees, and therefore the unfair labor practices are not too remote in time to defeat a causal connection. See, e.g., Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006) (employee poll show- ing loss of majority support was tainted by unlawful conduct that occurred 6–8 months beforehand); Penn Tank Lines, 336 NLRB 1066 (2001) (withdrawal of rec- ognition was unlawful because it was based on decertifi- cation petition tainted by employer’s unlawful actions that began 5 months earlier); Williams Enterprises, 312 NLRB 937, 939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995) (4 months between the employer’s unfair labor practices and the decertification petition not too remote in time). Overall, the Respondent’s unfair labor practices were of a serious nature tending to have a lasting detrimental effect on employees and to diminish support for the Un- ion. Although two of the Respondent’s 8(a)(1) violations were directed at individuals and were not disseminated to other employees—its October 4 unlawful confiscation of union materials from employee Jesse Harman’s work- station, and its mid-November unlawful threat to em- ployee Carlos Sahagun that the Union’s picketing of its dealer would force the Respondent out of business—the remaining violations are very serious because they af- fected the entire bargaining unit and bluntly illustrated to the employees the Union’s apparent inability to assist them. Within the space of a week in October, the Respondent took a quick succession of unlawful actions that affected the entire bargaining unit and delivered the obvious mes- sages that the Respondent had the discretion to freely act on its own, and that the union was inconsequential in its role as their bargaining representative. First, on October 12, Plant Manager Stewart made a speech at a meeting of all employees that unlawfully solicited them to report their coworkers’ union activities to management, and promised that he would “put a stop” to those activities. Just days later, and again at a meeting of all unit employ- ees, Stewart suddenly announced to the employees, with less than a day’s notice, that they would all be laid off from work on Friday, October 19, and possibly also on Monday, October 22, and that the plant would shut down. This strong demonstration to the employees of the Respondent’s unilateral power to act over their terms and conditions of work was quickly followed by its unilateral layoff of a majority of unit employees, its selective re- cruitment of a few employees to work on October 19, and its unilateral decision to give the work of the unit employees to supervisors and other nonunit personnel.2 All of these actions directly affected all unit employees, and were of a nature to seriously foster employee disaf- fection from the Union. The Respondent demonstrated that it could freely act against union supporters, shut down the plant, lay them off, and take away their work, and that the Union was powerless to protect them. See Penn Tank Lines, 336 NLRB at 1067. (“Where unlawful employer conduct shows employees that their union is irrelevant . . . the possibility of a detrimental or long- lasting effect on employee support for the union is clear.”) The final two Master Slack factors focus on the effect of the employer’s unlawful conduct on protected em- ployee activities. Here, the Respondent, by taking all of its unilateral actions relating to its unlawful layoff of unit employees, and by coercively soliciting unit employees to solicit their coworkers’ union activities so that it could “put an end” to them, ‘“minimize[d] the influence of organized bargaining’ and ‘emphasiz[ed] to the employ- ees that there is no necessity for a collective-bargaining agent.”‘ Id. at 1068 (quoting May Dept. Stores Co. v. NLRB, 326 U.S. 376, 385 (1945)). In sum, the bulk of the Respondent’s unlawful conduct is of a type that rea- sonably tends to have a negative effect on union support and to undermine the employees’ confidence in their collective-bargaining representative. I would therefore find that its unfair labor practices tainted the employee petition, and that the Respondent’s April 18 withdrawal of recognition violated Section 8(a)(5) and (1) of the Act. 2 In addition, of course, the Respondent had confiscated union mate- rial from employees and threatened that their protected picketing activ- ity would result in the shutdown of the plant. CHAMPION HOME BUILDERS CO. 797 IV. THE UNILATERAL WAGE INCREASE AND THE REFUSALS TO PROVIDE INFORMATION On April 20, the Respondent implemented an across- the-board wage increase of 61 cents per hour for all unit employees, and did so without first notifying the Union of its intention to increase wages or providing the Union with an opportunity to bargain over the increase. After that time, the Respondent also refused to comply with the Union’s requests for information dated February 14, April 22, and May 15. The judge found that each of those actions constituted a violation of Section 8(a)(5) and (1) of the Act. The only basis for the majority’s re- versal of those findings is that the Respondent took these actions after its April 18 withdrawal of recognition. See above at 1131–1132. Therefore, for the reasons stated by the judge, I would find those additional violations by the Respondent. In sum, I would adopt the judge’s unfair labor practice findings in their entirety, and issue an af- firmative bargaining order. 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 confiscate Carpenters Union Local No. 1109 materials from an employee workstation; or state to an employee that by picketing our distributor, the em- ployees were going to force us out of business. WE WILL NOT announce to all employees that we will shut down because of lack of work, or lay off a majority of unit employees, selectively recruit other unit employ- ees to perform unit work, and utilize nonunit personnel, including foremen, to perform unit work during the lay- off, without first notifying the Union and affording the Union an opportunity to bargain. WE WILL NOT refuse to provide relevant requested in- formation to the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL provide the Union with relevant requested in- formation. WE WILL make whole all the employees who were laid off on October 19, 2001, for any loss of earnings and other benefits they may have suffered as a result of their unlawful 1-day layoff, less any net interim earnings, plus interest. CHAMPION ENTERPRISES, INC., D/B/A CHAMPION HOME BUILDERS CO. Valerie Hardy-Mahoney, Esq. and Karen Ann Seidenstein, Esq., for the General Counsel. Lindberg Porter Jr., Esq. and Jennifer Jech Simonson, Esq. (Allen Matkins Leck Gamble & Mallory LLP), of San Fran- cisco and Irvine, California, for the Respondent. Allan Crawley, Esq., of Oakland, California, for the Charging Party. Paul Bradshaw, Senior Field Representative, Organizing De- partment, for the Charging Party. DECISION MARY MILLER CRACRAFT, Administrative Law Judge. This case was tried in Visalia, California, on August 27–30, 2002. The General Counsel alleges that Champion Enterprises, Inc., d/b/a Champion Home Builders Co. (Respondent) violated Section 8(a)(1), (3), and (5) of the Act, culminating in with- drawal of recognition on April 18, 2002, from Carpenters Un- ion Local No. 1109, a/w United Brotherhood of Carpenters and Joiners of America (the Union).1 On the entire record, including my observation of the de- meanor of the witnesses,2 I make the following FINDINGS OF FACT I. JURISDICTION Respondent is a Michigan corporation with an office and place of business in Lindsay, California, where it is engaged in 1 The Union filed the charge in Case 32–CA–19152–1 on October 3, 2001; the charge in Case 32–CA–19155–1 on October 4, 2001; the original and first amended charge in Case 32–CA–19181–1 on October 16 and December 12, 2001, respectively; the charge in Case 32–CA– 19279–1 on December 5, 2001; the charge in Case 32–CA–19344–1 on January 10, 2002; the charge in 32–CA–19366–1 on January 22, 2002; the original and first amended charge in Case 32–CA–19424–1 on February 15 and April 9, 2002, respectively; the charge in Case 32– CA–19587–3 and 32–CA–19587–4 on April 19, 2002; the charge in 32–CA–19619–1 on May 2, 2002; and the charge in Case 32–CA– 19766–1 on June 27, 2002. The fourth consolidated amended com- plaint issued on July 17, 2002. 2 Credibility resolutions have been made based upon the entire re- cord and all exhibits in this proceeding. Witness demeanor and inher- ent probability of the testimony have been utilized to assess credibility. Testimony contrary to my findings has been discredited on some occa- sions 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 the manufacture of modular homes. During the 12 months preceding July 17, 2002, Respondent sold and shipped goods valued in excess of $50,000 directly to customers outside the State of California. Respondent admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION STATUS Respondent admits, and I find, that the Union is a labor or- ganization within the meaning of Section 2(5) of the Act. III. ALLEGED UNFAIR LABOR PRACTICES A. Background Respondent builds prefabricated homes at various facilities in California. Respondent does not maintain an inventory of homes. Rather, all construction is initiated by customer order, accompanied by approved financing, for a specific model home with exterior and interior options selected by the customer. Each home is built on an assembly line which starts with the flooring or chassis, progresses to framing, roofing, interior walls, fixtures and appliances and is finally completed on the exterior and is painted. Various groups of employees perform specific portions of the assembly line work. For instance, group 10 completes the flooring, subflooring, plumbing, heating, decking, furnaces, and commodes. The next station completes interior walls, which have been preassembled on a jig and are set by crane on the unit. This is followed by the sidewalls, cabinets, countertops, and vanities. Group 30 builds the ceiling and completes all exterior and interior wiring. Group 40 installs siding, shingles, windows, doors, and exterior trim. The following station, group 60, completes taping and texturing. Group 50 follows with final touchups, checks the water system, lights, vent fans, and range hoods and loads the remainder of the material for completion onsite. Group 80 handles shipping and receiving. The relevant hierarchy at Respondent’s Lindsay, California facility includes Hugh Beswick, vice president, human re- sources, and chief negotiator; Donnie Scott, plant superinten- dent; Jim Stewart, plant manager; Terry Bagniefski, group 30 foreman; Steve Strong, group 40 foreman, Jesse Ortiz, foreman; and Sandi Stryd, controller.3 Following an election held on July 21, 2000, the Union was certified on April 10, 2001 as the exclusive collective- bargaining agent of the employees in the following appropriate unit: All full-time and regular part-time hourly paid production and maintenance employees including quality control inspectors, parts and receiving employees employed by Respondent at its 840 West Palm Avenue, Lindsay, California facility; exclud- ing all sales employees, service department employees, cleri- cal employees, guards and supervisors as defined in the Act. Since July 21, 2000, the Union has been the exclusive repre- 3 Respondent admits that these individuals are supervisors and agents within the meaning of Sec. 2(11) and (13) with the exception of Stryd. Respondent admits that Stryd is an agent within the meaning of Sec. 2(13) but is not a supervisor within the meaning of Sec. 2(11). sentative of the unit employees for the purpose of collective bargaining with respect to pay, wages, hours of employment, and other terms and conditions of employment. Negotiation commenced on July 23, 2001. Beswick, Stew- art, Scott, and Dick Barrett, vice president of operations for the western manufacturing region, represented Respondent at the table. Jay Bradshaw, senior field representative in the Union’s organizing department, was the chief union negotiator and was joined by employees Carlos Sahagun, Paul Guerrero, and Danny Nichols. Other employees, including Jesse Harman, participated in negotiations from time to time. Although nu- merous bargaining sessions were held and some tentative agreements were achieved, no contract was reached. The prin- ciple obstacle to reaching agreement was disagreement regard- ing union security. On April 17, 2002, Respondent received a petition signed by 89 of the 167 bargaining unit employees, stating that they no longer wished to be represented by the Union..4 On the follow- ing day, April 18, 2002, Respondent withdrew recognition from the Union. The complaint allegations are discussed below in chronological order. 1. On numerous occasions beginning in late July 2001, Strong, surveilled and/or created the impression that Respon- dent was surveilling the union activities of its employees Steve Strong has worked for Respondent for 32 years. He is the foreman of group 40, which performs painting, siding and shingling, and window installation. At the time of the trial, there were 28 employees in the group. Union negotiating com- mittee members Carlos Sahagun and Danny Nichols work in group 40. There is no evidence of a rule prohibiting employees talking to each other while they work. The area required for the painting, siding and shingling, and window work is about 65 feet for each section. Strong also supervises special options work, which is performed outside the main facility. Special options are features such as bay windows or porches, which require additional work, over and above the standard work for the model. Strong’s practice in monitoring the work of employees under his supervision is to go from sta- tion-to-station utilizing a checklist to determine if there are any problems. Strong visits employee’s work areas, as needed, from once to twice a day to once or twice a week. He orders materials for the employees, if needed. Strong converses with employees as he inspects their work. Strong can also stand on a balcony from which it is possible for him to see all employees performing their work. According to Sahagun, who has worked for Respondent for 12 years as a painter in group 40, other employees frequently come into his work area to get materials that he has built. When these employees talk with Sahagun, Strong is sometimes in the work area. Since negotiations began, on July 23, 2001, and, indeed, according to Sahagun, since early 2000, if Strong sees employees speaking to Sahagun, it appears to Sahagun that Strong makes a point of coming over and asking if there is a problem. Sahagun feels that Strong “stares us down” and so we 4 Although the petition was actually signed by 97 employees, Re- spondent did not rely on the signatures of 8 temporary employees. CHAMPION HOME BUILDERS CO. 799 just split up and walk away. Although Sahagun testified quite generally as to Strong’s ac- tions, he testified regarding two specific instances. First, on an unspecified date, Strong approached Nichols and Sahagun while they were talking and asked if there was a problem. Sec- ond, on Wednesday, October 24, 2001, Sahagun spoke with co- worker Holterman. Strong approached them and told Sahagun that employees would be leaving that day at 2 p.m. rather than leaving at 2:30 p.m. Five minutes later, Sahagun and Holter- man were still engaged in conversation. Strong approached them and stood between them. The employees quit talking. Sahagun also testified that prior to union activity, Strong would walk by about once a day, look at what Sahagun was doing, and then walk away. Since Sahagun has become active for the Union, Strong comes by Sahagun’s workstation about three or four times per day. Sahagun explained that after nego- tiations began, Strong’s observations “slowed down a little bit” to a level of two or three times per day. Strong’s observations stopped in December 2001.5 Danny Nichols, who has worked for Respondent 6 years and is currently a window and siding installer, testified that after the first negotiation meeting, his foreman, Steve Strong, began following him around at least five to eight times per day. Prior to negotiations, Strong followed Nichols one or two times per day, according to Nichols. This increased surveillance lasted for about 2 months. On July 24, when Strong followed Nich- ols, according to Nichols, Nichols, who was working on the outside of a structure installing windows, spoke with an em- ployee working on the inside of the structure. Strong asked Nichols what they were talking about and Nichols responded it was none of his business. Nichols agreed that Strong never told him to stop talking to employees and he never disciplined Nichols for talking to employees. The General Counsel argues that Sahagun’s and Nichols’ testimony conclusively illustrates that Respondent, through Strong, engaged in surveillance or created the impression of surveillance of Sahagun’s and Nichols’ conversations with other employees. The General Counsel notes that Nichols and Sahagun both testified regarding increased monitoring of their activities. Respondent characterizes Sahagun’s and Nichols’ testimony as “exaggerated and internally inconsistent.” Respondent fur- ther notes that no corroboration of their testimony was elicited. Finally, Respondent notes that Strong’s areas of supervision (three areas that are 65-feet long and another area outside) are enormous. Respondent argues that it would be physically im- possible for Strong to perform surveillance to the extent Saha- gun and Nichols claim. There is no doubt that Sahagun and Nichols were known un- 5 In his affidavit, Sahagun stated that Strong has been observing him three to four times a day for a few seconds “for years.” Sahagun ex- plained that Strong’s observations increased when Sahagun began wearing union paraphernalia. This would have been sometime in early 2000. I do not find that by use of the term “for years” in the affidavit, Sahagun contradicted his testimony that Strong’s increased activity began following the advent of union activity. Rather, I find these state- ments are consistent. ion adherents. Beginning in July 2001, both were members of the union negotiation committee. However, their testimony was inherently unbelievable and is not credited for that reason as well as for their relative demeanors vis a vis Strong’s com- portment as a witness. According to Sahagun, since he has become active for the Union, Strong has been monitoring Sa- hagun’s conversations with other employees by approaching the conversants and staring them down until they quit talking. This would be a period of at least 2 years as union activity commenced at some point in 2000. Nichols’ testified to a pe- riod of 2 months of increased surveillance, with Strong follow- ing him about 5 to 8 times per day during this period. These assertions are uncorroborated and incredible. Based on this credibility finding, the complaint allegations regarding surveil- lance or creation of the impression of surveillance are dis- missed. 2. In late September 2001, Strong demanded to see documents that a known union supporter was placing in his lunchbox and told him he could not pass out materials at work In September 2001, according to Strong, shortly after the morning break was over, he observed employee Danny Nichols on the south side of his workstation handing a paper to an em- ployee named Manuel (not in Strong’s department). Strong told Nichols not to hand out the paper. Strong told Nichols he needed to go back to work. He asked Nichols, “What is that?” Nichols responded, “Personal papers.” Strong advised, “You need to put those up and go back to work.” Strong did not ac- tually see the papers. Nichols testified that in late September, during breaks, he distributed a survey to employees. One day, when the 11:30 bell rang to return to work, Nichols took the surveys and his lunch bucket to his locker to put them away. While he was thus engaged, Strong approached Nichols and asked what kind of papers Nichols had. Nichols responded it was none of Strong’s business. Nichols asked why Strong singled him out when many others employees were doing the same thing. Strong did not respond but turned around and walked off. According to Nichols, he has observed documents related to football polls and lotteries in the workplace. The General Counsel would apparently synthesize the two disparate testimonies to create a situation in which, while Nich- ols was putting away his lunchbox, “Strong questioned Nichols about the Union survey he was handing to another employee and [told] him not to hand out the surveys.” That is not consis- tent with Nichols testimony or with Strong’s. Strong and Nichols testified regarding two separate events. Assuming that both testified credibly, no violation is present. Examining Nichols’ testimony alone, there is no evidence that Strong told Nichols that he could not pass out materials at work. Nichols testified only that Strong asked what kind of papers Nichols was putting in his locker. Such a question re- garding open actions of an employee, do not constitute coer- cion. Porta Systems Corp., 238 NLRB 192 (1978), enfd. 625 F.2d 399 (2d Cir. 1980). Turning to Strong’s testimony, he saw a known union adher- ent distributing a document on worktime. His question regard- ing the nature of the document, openly distributed during work DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 800 time, does not constitute surveillance. Porta Systems, supra. His admonition to get to work also lacks a coercive nature. Although Respondent does not have a no-distribution rule, there is no evidence that it allows employees to leave their workstations during worktime to distribute nonwork-related materials. The General Counsel’s claim that Respondent al- lows employees to sell candy during worktime, falls short of such evidence. Apparently the General Counsel is referring to the testimony of Nichols on rebuttal. He testified that he had seen employees selling candy during worktime. However, Nichols did not testify that Respondent was aware of the sale of candy during worktime. Accordingly, even crediting Nichol’s rebuttal testimony, there is no evidence that Respondent was aware of the sale of candy during worktime. This complaint allegation is dismissed. 3. On October 4, 2001, Bagniefski confiscated union materials from employee workstations Jesse Harman works in group 30. His supervisor is Terry Bagniefski. Harman builds ridge beams, fills the insulation machine, and cuts numerous 2 by 4s and 2 by 6s for the side- wall department. He also cuts and straps trusses for triple-wide mobile homes. Harman supported the Union by picketing, walking out, wearing union hats and T-shirts, and assisting the Union with surveys. The survey, distributed by Harman on October 4, 2001, asked employees to list their priorities regarding bargaining. Harman passed the surveys out before work, during breaks, and at lunch. When Harman reported to work at 7 a.m., he had the surveys with him in the break/lunchroom prior to 7 a.m. There were numerous other employees and Foremen Roy Williams, Terry Bagniefski, and Steve Strong present in the lunchroom at that time. Harman noted that Bagniefski saw the surveys. At the start of the workday, group 30 employees went out- side for their morning meeting with Bagniefski, who told them what they were going to work on that day. Harman had the surveys with him at the meeting. After the meeting, Harman went to his workstation and put the surveys on his workbench. On breaktime, Harman went by the ceiling area and asked em- ployees Butch and Albert (last names unknown) if they would like to have a survey. They said yes. Harman gave them sur- veys and told them that he would come back later to retrieve the completed surveys. As Harman started back to his work area, he saw Bagniefski take the surveys from Harman’s work- bench, where he had left them, roll them up, and take them through the lunchroom. Harman is aware that an employee named Butch (last name unknown) had a newspaper article on his workbench for win- ning a chili pepper eating contest. It lay on his workbench for about a week. Then Butch taped it to the board behind the bench. Harman knows Bagniefski read the article because Harman saw Bagniefski reading it. Bagniefski did not roll up Butch’s article and take it away. Additionally, Harman has seen football pool papers on work- benches. Harman knows that Bagniefski has seen these papers. Bagniefski did not do anything with those papers. Bagniefski testified that he did not confiscate any material that was union material from an employee’s workstation in September, October, or November 2001. In fact, Bagniefski stated that he did not confiscate any union material from an employee’s workstation at any time. On the whole, I credit Harman’s account of Bagniefski’s confiscation of his union surveys from his workbench. Bag- niefski’s denial was somewhat evasive in that he did not deny taking material from an employee’s workstation. Rather, his denial appears to be conditioned on his knowledge of the nature of the papers. Based on Harman’s credited testimony, I find that Bagniefski confiscated union materials from Harman’s workstation. 4. On October 12, 2001, at an employee meeting, Stewart solicited employees to report to management the names of union-supporting employees who “threatened” them with job loss or other unspecified harm It is undisputed that Stewart made a statement to employees on October 12, 2001, by reading verbatim from a written text. In part, this text provides: In recent weeks, I have had complaints from employ- ees about co-workers bothering them to try and get them to join or support the union. I have heard that some em- ployees are being told that if they don’t join the union, they will be fired. I have also heard reports of employees making crude and very insulting statements about co- workers with whose views they disagree. I want to talk about this. Each of you has the right to decide for yourself if you want to join the union. Our Company respects that right. Employees also have the right to try to convince each other that they should or should not support the union. We respect that right too. But, employees do not have the right to interfere with the work of the co-workers, whether they are talking about the union or about baseball. And they certainly do not have the right to threaten someone because of his or her position on the union. I cannot prohibit your co-workers from talking to you about the union issue. Frankly, each of you has the right to express your opinions on the union to each other. Peo- ple have the right to argue for their position. An employee has the right to say to his co-worker or employee: “you will someday wish you had supported the union.” Be- cause that is just a matter of opinion. However, no one has the right to threaten a co-worker with harm if he or she does not support the union. So, if someone is interfering with your ability to do your work, let your foreman know. We will put a stop to it. If someone is threatening you with harm or saying that you are going to lose your job if you don’t join the union, let your foreman know. We will put a stop to it. Stewart continued the speech by referring to a rumor that the union contract would require all employees to join or pay fees to the union. Foreman Jesse Ortiz interpreted Stewart’s re- marks into Spanish. The General Counsel argues that Respondent violated Sec- CHAMPION HOME BUILDERS CO. 801 tion 8(a)(1) by making this statement because employees were directed to identify union supporters based on employees’ sub- jective views of whether they felt they were being threatened or harassed by prounion employees, regardless of whether the underlying conduct was protected. The General Counsel relies on Tawas Industries, 336 NLRB 318 (2001). In that case, a notice provided, “If you feel that you are being subjected to [threats or coercion], please report such incidents to the Com- pany and we will take the appropriate action.” This was found unlawful because it had the dual effect of encouraging employ- ees to identify union supporters based on a subjective view of threat or coercion and discouraging prounion employees from engaging in protected activities. Id. at 322. Respondent argues that the statements read by Stewart do not violate Section 8(a)(1), citing Kern’s Bakery, 150 NLRB 998, 1001–1002 (1965); Liberty House Nursing Homes, 245 NLRB 1194, 1197 (1979). Respondent asserts that because the speech unambiguously solicited reportage of unlawful threats only, it was lawful. In Kern’s Bakery, a company letter advised, “This matter is of serious concern to your company and to you and your fam- ily. It is our sincere opinion that if a union took over your rights it would not work to your benefit but to your serious harm.” The letter also stated, “If anybody causes you any trou- ble at your work or puts you or your family under any sort of pressure to sign a card, please let me [Hart] know and I will see that it is stopped immediately.” These statements were found protected by Section 8(c). In Liberty House, a speech informed employees, “if any of you are threatened, we want to know about it. . . . We are not going to put up with this. This union is not going to scare Liberty [House] Nursing Homes into roll- ing over and playing dead.” The speech continued, “Let me repeat, if any of you are threatened by any one, we want to know about it. This nursing home is going to protect your right to make a free choice in this matter.” The Board found these statements were sufficiently specific to require that any poten- tial infringement of Section 7 yield to the right of employers to assure that its employees are insulated from coercion of em- ployee organizers. However, the Board also found that a statement to a single employee, “I don’t want anyone harassing you to vote for the Union,” was found violative because it was broad enough to cover mere attempts to persuade employees to sign cards. Id. at 1197. In disagreement with Respondent, I find that the speech so- licited employees to report the activities of prounion employees whenever they felt subjectively bothered, insulted, or interfered with. Such subjective employee feeling may well be in direct contradiction of the laws protecting employee activities. As author of the speech, Respondent must bear the burden of any ambiguities inherent therein.6 The speech, on the whole, is 6 In CMI-Dearborn, Inc., 327 NLRB 771, 775–776 (1999), the letter stated, “CMI will protect you from any threats, coercion or scare tactics used by union pushers to get you to join the union. If anyone tries these tactics on you, we urge you to report it . . . immediately. We will pro- tect your right to be left alone.” This request was held unlawful be- cause it could include every contact that employees might subjectively regard as scare tactics or coercion. open to varying interpretations.7 I note that the speech initially refers to employees “bothering” their coworkers and employees “making crude and very insulting statements.” The speech continues with a general admonition that “if someone is inter- fering with your ability to do your work, let your foreman know.” Concluding words make clear that it is prounion em- ployees who should be reported. “If someone is threatening you with harm or saying that you are going to lose your job if you don’t join the union, let your foreman know.” Although use of the term “threaten” has been viewed as an insulating factor in such speeches,8 the total context of the speech in this instance convinces me that Respondent solicited lawful as well as unlawful activities.9 5. October 18, 2001: Respondent announced that its Lindsay facility would be shut down on the following day due to lack of work; laid off a majority of unit employees for the following workday, October 19, 2001; selectively recruited a number of unit employees to perform unit work on October 19, 2001; and utilized nonunit personnel, including foremen, to perform unit work on October 19, 2001, all without prior notice to the Union and without affording the Union an opportunity to bargain about these decisions or their effect on unit employees At a meeting of all employees held on October 18, 2001, Stewart announced there would be no work for employees on Friday, October 19, and possibly Monday, October 22. The Union did not receive any notice regarding the shutdown or layoff of employees. Some employees were asked to work on October 19. These employees were needed for maintenance or to complete special options. The Union received no notice regarding selection of employees to work that date. The Union had no opportunity to bargain about the shutdown, layoff, or selection of employees to work. All members of management continued working on October 19, 2001. Some of them per- formed unit work. The Union did not receive any notice about management performing unit work. Prior to October 18, 2001, Respondent experienced similar instances when there were insufficient orders to warrant run- ning the assembly line. Respondent asserts that because such instances are regular, typical occurrences, Respondent had no duty to bargain with the Union. Rather, Respondent asserts that standard practice during such a shutdown is to have employees perform work that is not complete. Because there was work to be completed in finishing and special options, those employees were requested to work. The General Counsel argues that Respondent’s obligation was to notify the Union and afford the Union an opportunity to bargain regarding the shutdown, layoff, and utilization of em- 7 Although Respondent avoided the pitfall of the ambiguous term “harassment” (see Fixtures Mfg. Corp., 332 NLRB 565 fn. 4 (2000)), its utilization of the terms “interfere,” “threaten,” “bother,” and “insult- ing” lead to the same result. 8 See, e.g., Aluminum Casting & Engineering Co., 328 NLRB 8, 9 (1999) (holding limited to portion of statement, if “anyone puts you under any pressure to sign a union card,” and not to portion referring to if anyone “threatens you in any way because you won’t sign a card.”). 9 Accord: Greenfield Die & Mfg. Corp., 327 NLRB 237, 238 (1998). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 802 ployees during the layoff as well as utilization of management to perform bargaining unit work during the layoff. This duty evolves from the mandatory nature of such subjects. The Gen- eral Counsel notes that any past practice regarding such situa- tions is irrelevant as a defense against the duty to bargain. The General Counsel relies on Eugene Iovine, Inc., 328 NLRB 294 (1999); Miller Waste Mills, 334 NLRB 466 fn. 10 (2001), enfd. 315 F.3d 951 (8th Cir. 2003). The General Counsel also notes that although the shutdown and layoff were discretionary ac- tions made at the last minute the evidence indicates that the lack of incoming orders is constantly monitored. In agreement with the General Counsel, I find that Respon- dent violated Section 8(a)(1) and (5) by failing to provide the Union with notice and an opportunity to bargain regarding the shutdown of the plant, layoff of employees, selection of em- ployees for work during the shutdown, and performance of bargaining unit work by supervisors. As cases cited by the General Counsel hold, the decision to lay off employees, the method of selection for lay off, and performance of unit work by management, even when occasioned by economic exigen- cies, is a mandatory subject of bargaining. 6. On November 14 or 15, 2001, Scott told employees that by picketing Respondent’s dealer, employees were going to force Respondent out of business Carlos Sahagun testified that at a safety lunch the week be- fore Thanksgiving, he spoke with Plant Superintendent Scott. Scott said, “I see your buddies are out picketing [Respondent’s] dealer in Visalia.” Sahagun responded, “good for them.” Scott said, “you all are going to force us right out of business.” Scott denied that he had ever told any employee that Respondent would shut down if the employees went on strike. Scott re- called that employees have asked him if the union picketing at Respondent’s distributors was lawful. Scott responded to this question that he guessed it was lawful. I credit Sahagun’s tes- timony and find that by telling Sahagun that the picketing would force Respondent out of business, Respondent threat- ened employees. 7. December 20, 2001: first information request At bargaining sessions held on November 26 and December 13, 2001, the Union presented its economic proposals. Al- though Respondent stated that it did not want to discuss eco- nomics until the end of negotiations, a colloquy between Bes- wick and Bradshaw, the chief Respondent and union negotia- tors, respectively, devolved. Bradshaw asked Beswick what Respondent’s position was regarding the Union’s wage pro- posal of $15 per hour. Beswick testified that he told Bradshaw the proposal of a flat rate was ludicrous. Beswick explained that elimination of incentive-based pay would affect productiv- ity negatively. According to Beswick, he explained that Re- spondent was not “crying poor” but, rather, the industry was labor-intensive and incentive pay was necessary to maintain high production. Bradshaw testified, to the contrary, that Bes- wick told the Union that Respondent could not survive; that it would be ludicrous for Respondent to agree to the union pro- posal because Respondent could not afford it. Bradshaw agreed that Beswick also stated that wages had to be tied to a bonus plan. By letter of December 20, 2001, the Union requested that Respondent provide it with all economic records including work orders and profit margins over the last 2 years, for the Lindsay facility as well as a list of Respondent’s competition in the Lindsay market. This information was not provided to the Union. On the whole, I credit Beswick’s testimony. The record in- dicates that Respondent’s incentive-based pay averaged $12.40 to $12.45 per hour. Some employees earned up to $14 per hour. It is therefore unlikely that a proposal of $15 per hour would be seen as unaffordable. Rather, it is more likely that the failure to include a production link to wages was the offending factor. Given this credibility determination, I find that Respondent was not required to produce the requested information. Gener- ally, in order to fulfill its duty to bargain in good faith, an em- ployer must provide relevant information necessary for the union to perform its representative duties. Detroit Edison Co. v. NLRB, 440 U.S. 301, 303 (1979); NLRB v. Acme Industrial Co., 385 U.S. 432, 435, 436 (1967); NLRB v. Truitt Mfg. Co., 351 U.S. 149, 152 (1956). If an employer asserts that it cannot pay a particular wage, a union is entitled to justification for this position. The employer must provide the union with its finan- cial records. Shell Co., 313 NLRB 133, 133–134 (1993). However, the record as a whole determines whether financial inability to pay has been asserted. For instance, an employer may claim inability to pay but may subsequently rephrase its position that it is not claiming poverty or an inability to pay. In this situation, the union is not entitled to see the employer’s financial records. Central Management Co., 314 NLRB 763, 768–769 (1994). In the instant case, Respondent made clear that it’s bargaining position required incentive-based labor costs. Accordingly, as financial inability to pay was not at issue, there is no violation. Nielsen Lithography Co., 305 NLRB 697, 700 (1991), enfd. sub nom. Graphic Communica- tions Local 508 v. NLRB, 977 F.2d 1168 (7th Cir. 1992). 8. On January 16, 2002, Bagniefski gave employee Harman extra work to perform and Scott harassed Harman because of his union activity by calling Harman into Scott’s office On January 16, 2002, Harman’s foreman, Bagniefski, told him that Harman would need to perform the work of another employee (Mike—last name unknown) who had been tempo- rarily reassigned to the assembly line. Specifically, Bagniefski asked Harman to lay out rafters. According to Harman, he responded that he had a heavy workload that day but he would help out as much as he could. Bagniefski testified that Harman refused the assignment. Despite their disagreement on exactly what was said, it is undisputed that Bagniefski viewed Har- man’s response as less than desired and reported the matter to Scott. Bagniefski also reported other bickering and quarreling between Harman and himself earlier that week regarding blue- prints. Scott told Bagniefski to leave Harman alone and Scott promised he would talk to Harman about the matter.10 10 Scott believed he had called Harman into his office on two prior occasions. One involved a “cuss fight” between Harman and another CHAMPION HOME BUILDERS CO. 803 Harman testified that he was unable to complete some of his regular work and had to leave some work orders uncompleted. Harman also went to Mike’s workstation and completed some of Mike’s work that day. He did not know how much work he completed or how much work Mike was supposed to have completed that day. Harman agreed that he performs Mike’s work whenever Mike is on vacation. Respondent’s records do not reflect that Harman performed any of Mike’s work that date. Somewhere between 2:30 and 3 p.m. on January 16, 2002, Harman was told to go to Scott’s office. Harman asked Nichols to accompany him. According to Harman, Scott asked Harman if he could work a little better with Bagniefski and get out the amount of work Bagniefski expected. Scott also asked Harman to be a team player. Harman complained that whenever he pointed out problems in construction to Bagniefski, Bagniefski was less than receptive. Scott concluded with the comment that Harman should try to get along with Bagniefski. Nichols testified that Harman called him at about 3:20 p.m. and told him that he was going to be disciplined. The two went to Scott’s office and Nichols recalled that Scott told Harman that he was not being a team player. Harman responded, ac- cording to Nichols, that Harman had gotten behind on his own job while he was doing Mike’s job as well. However, he was getting caught up on his regular job. Harman characterized Bagniefski as difficult to get along with since the very begin- ning of his tenure with Respondent. These facts do not make out an instance of harassment. All parties agree that when Bagniefski asked Harman to step in and help with Mike’s work, Harman was equivocal, at a minimum, about following his foreman’s order. Bagniefski told Scott, who was not present during Harman’s and Bagniefski’s ex- change, that Harman had refused to follow a direct order. Un- der these circumstances, Respondent was warranted in discuss- ing the matter with Harman. Although Harman was an open union supporter, there is no evidence that ties Scott’s request to talk with Harman to Harman’s union activity. Assuming that there were such evidence, Respondent has proven a legitimate reason for its actions. I find that Harman would have been called into Scott’s office and asked to be a team player in any event. Accordingly, this allegation is dismissed. 9. February 11, 2002: second information request At an unspecified date during bargaining, the Union learned that Respondent utilized quality control. By letter of February 11, 2002, the Union requested: 3. A copy of any company policy or procedure with respect to handling customer complaints. 4. A statement of any policy or procedure with respect to handling customer complaints. Bradshaw explained that these items were requested so that the Union could discern whether there was follow through on customer complaints that might create employee disciplinary issues. The Union also wanted to explore forming a quality employee. Scott could not remember what the second incident might have involved. committee. The requested items were not produced. However, by letter of February 21, 2002, Beswick stated that, “As far as we can tell, there has never been any disciplining of individuals as a result of customer complaints.” This does not constitute a response to the information request. If Respondent had policies or procedures regarding handling customer complaints, it was required to provide such documents to the Union. See, e.g., Honda of Hayward, 314 NLRB 443, 452–453 (1994), and cases cited therein. 10. February 14, 2002: third information request By letter of February 14, 2002, the Union requested copies of all personnel documents relating to absenteeism over the last 3 years. Respondent agreed to provide this information by letter of March 6, 2002, noting that it would take about 6 weeks to compile the data. Respondent withdrew recognition prior to providing the information. Since withdrawal of recognition, Respondent claims it is under no obligation to provide the in- formation. Although Respondent estimated about 6 weeks from March 6, 2002, when those 6 weeks passed on April 17, 2002, the information was not produced. Assuming that 6 weeks was a reasonable period of time, I find that Respondent violated Section 8(a)(1) and (5) by failure to produce the pre- sumptively relevant material.11 11. On or about February 14, 2002, Respondent denied employees Dwain Glispey and Frank Terranzes, both of whom were on nonwork status and on workers compensation, access to its employee lunchroom Prior to February 14, 2002, both Glispey and Terranzes were allowed access to the employee lunchroom. Although both were on workers’ compensation leaves, during the union cam- paign, they frequented the lunchroom to hold union informa- tional meetings. In fact, the evidence reflects that other off- duty employees were also allowed access to the employee lunchroom. On February 14, 2002, Union Representatives Manny Sierra and Dave Lupo entered the lunchroom and walked into the production area with a camera. Because most of the managers were in negotiations at the time, Controller Sandra Stryd was contacted about the presence of union representatives in the production area. Stryd asked Sierra to come to the office with her to sort out the access issue. Sierra refused. Stryd requested that an employee call the sheriff’s department. Glispey and Terranzes arrived at the facility after Sierra and Lupo. Glispey and Terranzes waited in the office to meet with them but after waiting awhile, they went outside and attempted to approach the facility through the lunchroom area. The sher- iff’s department had arrived at that time. Glispey asked Sierra, who was exiting the facility through the lunchroom door, whether the OSHA 200 log was on the bulletin board. Sierra said it was not. Glispey asked if he could check and Sierra told him to check for himself. Stryd, who was standing in the door of the lunchroom, refused to allow Glispey to enter. It is clear that Glispey and Terranzes sought access to the 11 Information regarding employees in the unit is presumptively relevant. Shell Development Co. v. NLRB, 441 F.2d 880, 887 (9th Cir. 1971). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 804 employee lunchroom on February 14 only to access the produc- tion area. Respondent was aware that this was the sole purpose of Glispey’s and Terranzes’ attempt to enter the lunchroom. There is no evidence that Respondent allows off-duty employ- ees to access the production area. Accordingly, it does not constitute a change in policy to bar off-duty employees from the production area. Moreover, any argument that failure to allow Glispey and Terranzes access to the lunchroom because of their union activities is belied by the free access to the lunch- room which they were accorded to conduct union informational meetings. Accordingly, this complaint allegation is dismissed. 12. On April 18, 2002, Stewart told employees at an employee meeting that Respondent was withdrawing recognition from the Union and would no longer negotiate or bargain with the Union; on April 18, 2002, Respondent withdrew recognition On April 18, 2002, Respondent withdrew recognition of the Union as the exclusive collective-bargaining representative of the unit employees. This was based on a petition signed by a majority of its unit employees. There is no evidence, nor is it alleged, that Respondent unlawfully sponsored the petition. Respondent’s withdrawal of recognition on April 18, 2002, occurred 9 days after expiration of the certification year, which began on April 10, 2001. Accordingly, the Union’s presump- tion of majority status, irrebuttable for 1 year, was rebuttable on April 18, 2002. There is no doubt that Respondent has shown that the Union actually lost the support of a majority of unit employees. Ac- cordingly, pursuant to Levitz Furniture Co. of the Pacific, 333 NLRB 717 (2001), Respondent was privileged to withdraw recognition from the Union unless the petition from employees was caused by serious unremedied unfair labor practices. The parties acknowledge that in order to determine whether there is a causal connection between the unfair labor practices and the subsequent lack of support for the Union, it is necessary to examine the length of time between the two, the nature of the violations, the tendency of the violations to cause employee disaffection, and the effect of the unfair labor practices on em- ployee morale, organizational activities, and membership in the Union. Lee Lumber & Building Material Corp., 322 NLRB 175, 177 (1997) (Lee Lumber I), enfd. in relevant part and re- manded 117 F.3d 1454 (D.C. Cir. 1997), decision on remand 334 NLRB 399 (2001) (Lee Lumber II), enfd. 310 F.3d 209 (D.C. Cir. 2002); Master Slack Corp., 271 NLRB 78, 84 (1984). Analysis of the circumstances surrounding withdrawal of recognition indicates that Respondent’s unfair labor practices tainted the petition submitted by employees on April 18, 2002. Respondent argues that many of the allegations are too re- mote in time to retain a causal connection to the withdrawal of recognition. One of the unfair labor practices span a period from October 12, 2001, through February 14, 2002. The first unfair labor practice, a request that employees report prounion employees’ subjectively harassing activities, occurred on Octo- ber 12, 2001, about 6 months prior to the withdrawal of recog- nition. This was followed by failure to bargain with the Union about the plant shut down, layoff of employees, selection of employees to work during the shutdown, and utilization of supervisors to perform bargaining unit work, all occurring on October 18, 2001. Although this failure to bargain was not an overall failure to bargain, warranting a presumption of causa- tion,12 this failure to bargain was quite serious and showed employees that Respondent could apparently shut down without consultation with the Union. In November, Scott told Sahagun that employee picketing would drive Respondent out of busi- ness. Finally, on February 11 and 14, Respondent refused to provide information to the Union during the course of bargain- ing. These dates are not too remote in time to have an effect on employee support for the Union. All were within 6 months of withdrawal of recognition. Given the nature of the unremedied unfair labor practices, this period of time is not too remote to defeat a causal connection. See, e.g., D & D Enterprises, 336 NLRB No. 76, slip opinion at 10 (2001) (15 weeks insufficient time to dissipate effects of unfair labor practices); Overnite Transportation, 333 NLRB 1392, 1395 (2001) (unremedied unfair labor practices which occurred 4 years prior to decertifi- cation petition not too remote in time given serious and perva- sive nationwide unfair labor practices that would have a lasting effect on all employees); Williams Enterprises, 312 NLRB 937, 939 (1993), enfd. 50 F.3d 1280 (4th Cir. 1995) (4 months be- tween employer unfair labor practices and decertification peti- tion not too remote). The nature of the violations and their tendency to create lack of support for the Union is readily evident. Although Bagnief- ski’s confiscation and Scott’s November statement to Sahagun were one-on-one occurrences with no evidence of dissemina- tion, the other violations are quite serious because they affected the entire bargaining unit and illustrated the apparent weakness of the Union to assist employees. Requesting that employees inform on their coworkers based upon subjective opinion was the first step in creating employee disaffection. Bypassing the Union in October when the plant was shut down was certainly great cause for employees to question the efficacy of union representation. Thereafter, Respondent hampered union bar- gaining by failing to provide materials which were necessary for meaningful negotiations. There is no direct evidence regarding the effect of the unre- medied unfair labor practices on employee morale, organiza- tional activities, and membership in the Union. However, it is reasonable to infer that Respondent’s unfair labor practices, which were disseminated throughout the bargaining unit, weak- ened the ability of the Union to represent employees. If it is unnecessary to bargain with the Union about all the factors inherent in plant shutdown, reducing prounion employees to picketing while others worked, and if Respondent is allowed to gather subjective evidence from employees who feel they are being bothered, insulted or interfered with by prounion em- ployees, it is reasonable to infer that employees will determine that there is nothing to be gained from union representation. During the course of these events, core union adherents and members of the bargaining committee continued to remain loyal to the union effort. These employees wore union para- 12 See Lee Lumber I, supra at 178. CHAMPION HOME BUILDERS CO. 805 phernalia to work and supported picketing and walkouts to protest Respondent’s actions and the course of negotiations. Although Respondent argues that this show of support indicates that employee morale, organizational activities, and member- ship in the Union were unaffected by solicitation of subjective feelings regarding being bothered, insulted, or interfered with by prounion employees and failure to bargain about the plant shutdown, I find this evidence insufficient to indicate that other employees’ prounion sentiments were unaffected. Based on the record as a whole, I find that Respondent’s withdrawal of recognition on April 18, 2002, was tainted by its prior unremedied unfair labor practices. Contrary to Respon- dent’s assertion, I do not find that Airport Aviation Services, 292 NLRB 823 (1989), requires a different result. The facts are distinguishable. In Airport Aviation, the Board held that failure to respond to an October 1983 information request, combined with failure to furnish the 1982 payroll, and to answer griev- ances in May 1984 did not have a “direct adverse impact on wages or benefits and their long term effects were impercepti- ble at the time of the deauthorization activity [of August 14, 1984].” Id. at 824. In the instant case, Respondent not only failed to provide information to assist the Union’s bargaining, it also asked all employees to report prounion activity and failed to bargain about a plant shutdown. Similarly, I disagree with Respondent’s assertion that Howe K. Sipes Co., 319 NLRB 30 (1995), requires a contrary result. In that case, Respondent failed to provide information to the union prior to withdrawal of recognition. The judge found, with Board approval, that the failure to provide the union with information would not tend to cause disaffection with the Un- ion. Id. at 40. 13. On April 19, 2002: Respondent announced and on April 20, 2002, implemented an across-the-board wage increase for all unit employees of 61 cents an hour without firstnotifying the Union of its intention to increase the wages of employees On the day following withdrawal of recognition, Respondent announced a wage increase. This increase, implemented on April 20, 2002, was proposed at the table on April 17, 2002, as part of Respondent’s offer, an offer characterized by Respon- dent as worthy of a vote. The offer was rejected by the Union at the table. Prior to implementation on April 20, 2002, there was no notice to the Union regarding implementation of this wage increase. It is uncontested that at the time of the increase, the parties had not reached impasse or agreement in negotia- tions. It is undisputed that the wage increase was a mandatory subject of bargaining and that Respondent failed to notify the Union of the issue before implementing the wage increase. Respondent relies on its asserted lawful withdrawal of recogni- tion as the basis for failure to consult the Union, citing Master Slack Corp., 271 NLRB 78, 81 (1984). Because Respondent had not lawfully withdrawn recognition at the time of announc- ing and implementing the wage increase, its obligation to bar- gain with the Union regarding mandatory subjects of bargain- ing continued. By failing to notify the Union and provide an opportunity to bargain about the wage increase, Respondent violated Section 8(a)(1) and (5). 14. April 22, 2002: fourth request for information By letter of April 22, 2002, the Union requested certain fol- lowup information: 1. With regard to item 1, you list a number of em- ployment policies, but you do not answer the question as to whether these are all of the employment policies en- compassed by your management rights proposal. Please do so. 2. Second of all, you provide some, but not all, of your “applicable Human Resources guidelines.” We are requesting that you complete the response to the informa- tion request by furnishing all of the human resources guidelines, so that we can determine which are applicable. 3. With regard to item 1(d), you admit that you do have work schedules that are in writing, but you have yet to admit that you have production schedules as well. However, you furnished neither of the work schedules re- ferred to in your response and all of the production sched- ules requested. . . . . 6. With regard to your withholding information re- garding work-related injuries, it becomes impossible to evaluate the workplace safety without them. We are ask- ing you to reconsider your refusal in this regard. . . . . 12. With regard to the health information you fur- nished, you appear to have furnished us two different kinds of information. Please correct me if I’m wrong. It appears to us that you have furnished information regard- ing a medical plan in effect in some of your facilities and also information regarding a proposed medical plan for this facility. Thus, in various documents, you refer to the size of the coverage group as 4,500 individuals, and other of the documents refer to the coverage group as involving 12,000 individuals. . . . . 14. With respect to the financial information, you have omitted the dollar amounts of the employee contribu- tions. Rather, you merely indicate 65 percent. In order to analyze the impact of the contributions on the employees, we need the figures, and not the percentage of the unspeci- fied amount. 15. With regard to the PPO referred to in the program summary, please send us a list of all the preferred provid- ers for the Northern California area. 16. With regard to the benefit summary, please send us a list of the new network providers referred to therein. Please also furnish the addendums referred to therein in 3.3: Various Global Services. 17. With regard to paying for office services, what is referred to in the entry called “Change?” 18. What are the changes in coverage information, Section 112.1 relating to outpatient mental health ser- vices? 19. With regard to administrative fees, you list an ad- ministrative fee of $34.00 per month per subscriber with DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 806 4,500 subscribers; yet, the plan coverage indicates 12,000. How many persons are covered by the plan, and what will be the administrative fee per subscriber for the Northern California employees’ unit? 20. We note that Blue Cross is entitled to change ad- ministrative specific and aggregate stop-loss fees and ag- gregate attachment if the enrollment varies by 15 percent. Is the enrollment in our plan going to 180 employee, 4,500 employees, or 12,000 employees? Bradshaw testified that the Union wanted employment poli- cies encompassed in the Respondent’s management-rights pro- posal to address the expansive rights Respondent sought to incorporate in its management-rights proposal. The Union needed Respondent’s human resources guidelines to understand maintenance of Respondent’s personnel files and the hiring of new employees. The Union requested production schedules due to Respondent’s bonus plan and work schedules. This was tied to wages, an economic issue. The Union wanted records of all work-related injuries in order to propose a safety committee and to discuss post-injury treatment. As to item 12, Bradshaw testified the Union was confused by the health plans presented to the Union because there were different groups mentioned. Item 14, the copayment informa- tion, was requested because this amount is deducted from em- ployees’ checks and the Union needed to know how much indi- vidual and family copayments were to see how it would impact employees’ pocket books. Regarding item 15, the Union wanted a list of all preferred providers so it could run a check on the providers’ infection rates, access, malpractice suits, pre- natal care, child health care facilities, and occupational facili- ties. Item 17 concerned what office services were covered by “change.” Item 18, requested changes in outpatient mental health coverage. The Union also sought clarification on admin- istrative fees and copayment. Finally, in item 20, the Union sought the size of the covered employee enrollment. This information was necessary to the Union’s ability to rep- resent the employees and to bargain effectively on their behalf. Respondent claims the fourth and fifth information requests were rendered moot by its lawful withdrawal of recognition. Respondent also notes that because the request postdated with- drawal of recognition, any failure to furnish the information could not have tainted the withdrawal of recognition. Respon- dent cites A. W. Schlesinger Geriatric Center, 304 NLRB 296, 298 (1991). Given my finding regarding the unlawfulness of the withdrawal of recognition, failure to provide the informa- tion violates Section 8(a)(1) and (5). 15. May 15, 2002: fifth request for information By letter of May 15, 2002, the Union requested: “a list of the employees; job classification; dates of hire; tenure of employ- ment; wages rates; . . . and addresses of all persons employed by [Respondent] in the bargaining unit for the period from April 1, 2002 through the present, May 10, 2002.” The Union did not receive any information pursuant to this request. The requested presumptively relevant information was necessary to the Union’s ability to represent employees. Given my finding regarding the unlawfulness of the withdrawal of recognition, failure to provide the information violates Section 8(a)(1) and (5). CONCLUSIONS OF LAW 1. By confiscating union materials from an employee work station, Respondent has engaged in unfair labor practices af- fecting commerce within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act. 2. By soliciting employees to report to management the names of union-supporting employees who bothered them, made crude or insulting remarks, or interfered with ability to work, Respondent violated Section 8(a)(1). 3. By stating to an employee that by picketing Respondent’s distributor, employees were going to force Respondent out of business, Respondent violated Section 8(a)(1). 4. By announcing to all employees that it would shut down because of lack of work without prior notice to the Union, and by laying off a majority of unit employees, selectively recruit- ing other unit employees to perform unit work, and utilizing nonunit personnel including foremen to perform unit work during the layoff, without first notifying the Union and without affording the Union an opportunity to bargain, Respondent violated Section 8(a)(1) and (5). 5. By announcing that Respondent was withdrawing recog- nition from the Union and would no longer negotiate or bargain with the Union, Respondent violated Section 8(a)(1). 6. By withdrawing recognition of the Union as the exclusive collective-bargaining representative of unit employees, Re- spondent violated Section 8(a)(1) and (5). 7. By refusing to provide information to the Union pursuant to its requests of February 11 and 14, April 22, and May 15, 2002, Respondent violated Section 8(a)(1) and (5). REMEDY Having found that Respondent has engaged in certain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Included in the affirmative action necessary to remedy the unfair labor practices is an order that Respondent bargain with the Union for a reasonable period of time of at least 6 months and no more than 1 year. Lee Lumber II, supra at 402. Respondent asserts that the facts of this case do not warrant depriving employees of their Section 7 right to choose whether or not they wish to be represented by the Union. I disagree for the following reasons. First, the Union was certified in April 2001. Bargaining did not commence until July 2001. In October 2001, Respondent solicited employees to report on prounion employees’ activities and then shut down the plant without bargaining with the Union about the shut down, the layoff, selection of employees who would not be laid off, or performance of unit work by non-unit personnel during the shut down. The Board has long recog- nized that bargaining for an initial contract is especially diffi- cult. See Lee Lumber II, supra at 403. Respondent severely hampered the Union’s bargaining ability by these egregious violations. The requirement that Respondent bargain with the Union for a reasonable period of time must be viewed in light of these violations. Balanced against this requirement, it must CHAMPION HOME BUILDERS CO. 807 be conceded that the Section 7 rights of employees who may oppose continued representation by the Union are not unduly hampered by the 6 to 12-month prohibition to raising a question concerning the Union’s continuing majority status.13 Second, an affirmative bargaining order will foster the Act’s policy of maintaining meaningful collective bargaining and industrial peace. It will restore to the majority who originally voted for the Union an opportunity to engage in meaningful bargaining without the danger of decertification. Respondent’s actions deprived the Union and the employees who supported the Union of this opportunity. Finally, the temporary affirmative bargaining order is the 13 Moreover, I note that Respondent’s unilateral actions continued following the unlawful withdrawal of recognition. Respondent pro- vided a wage increase and continued to refuse to provide information to the Union that was necessary to the Union’s ability to represent em- ployees and to effectively negotiate on their behalf. Employees thus clearly learned that rejection of the Union would be rewarded by a wage increase. The affirmative bargaining order will allow the Union an opportunity to meaningfully bargain for the employees in order that they may potentially reassess the Union’s ability to represent them. only remedy which is adequate to remedy Respondent’s viola- tions. The Union must be afforded a time to bargain with Re- spondent free of decertification efforts. The alternative rem- edy, a notice to employees, would not adequately remedy the tainted withdrawal of recognition. Such a remedy would merely serve to reward the wrong doer by requiring only that a notice be posted while it would not advance the Section 7 rights of employees who might wish to have no union representation. Such Section 7 rights must be exercised in an atmosphere free of the unlawful effects that directly caused employee disaffec- tion. Respondent shall also be ordered to make whole all employ- ees for its unlawful unilateral 1-day layoff based on legitimate economic concerns. Accordingly, Respondent shall make whole all affected employees who were laid off on October 19, 2001, for any loss of earnings and other benefits, computed on a quarterly basis, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987). [Recommended Order omitted from publication.]