Interstate Drug Exchange, Inc.

RAYSEL-IDE, INC. 879 Raysel-IDE, Inc., a wholly-owned subsidiary of Interstate Drug Exchange, Inc. and General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America. Case 9-CA- 23254 30 June 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND CRACRAFT On 17 December 1986 Administrative Law Judge David L. Evans issued the attached decision. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed 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 brief and has decided to affirm the judge's rulings, fmdings, and conclusions only to the extent consistent with this Decision and Order. The judge found that the Respondent violated Section 8(a)(3) and (1) of the Act by laying off two employees because of their union organizing activi- ties. Further, the judge concluded that the Re- spondent committed a separate 8(a)(1) violation when its general manager instructed one of these same employees, after she was recalled, to refrain from wearing union insignia while on company property. For the reasons set forth below, we find, contrary to the judge, that the General Counsel has failed to sustain her burden of proof as to any of the allegations. Linda Williams and Ella Brown both com- menced their employment in the Respondent's drug distribution warehouse on 29 November 1985. In early June 1986, 1 Williams spoke casually with her coworkers about the possibility of union represen- tation. Between 17 and 20 June Williams distribut- ed around 10 or 11 union authorization cards to other employees, concededly away from the dis- cernible scrutiny of supervisors. The record reveals that on 20 June, Williams, Brown, and employee Minnie Russel were sitting at a small rectangular table in the lunchroom during the noon lunchbreak when Brown passed an authorization card and union booklet to Williams. At this time, Mary Kay Klapheke, an employee in the warehouse and the daughter of General Man- ager Eugene Klapheke, sat nearby with approxi- mately seven other employees at two similar rec- All dates hereinafter are in 1986. tangular tables, which were pushed together at the short ends. This "double table" was located ap- proximately 6 feet away from the table where Brown and Williams sat. The record does not indi- cate where Mary Kay Klapheke sat at the "double table" or her distance from Brown and Williams during the card and booklet exchange. Although Williams testified that Mary Kay Klapheke saw Brown pass something to Williams across the lunch table, she admitted that she did not know whether Mary Kay Klapheke knew what was being passed. Both Williams and Brown were laid off by Gen- eral Manager Klapheke after the above-described card and booklet exchange about 3 or 3:30 p.m. on 20 June. Subsequently, on 25 June, the Respondent issued to its employees a letter urging them, inter alia, not to attend a scheduled union meeting and to avoid signing authorization cards. On 15 July Williams and Brown both returned to work after being recalled by the Respondent. That same day, General Manager Klapheke instructed Williams to remove a union button from her person and to re- frain from wearing it at the plant. On the following day, Klapheke apologized to Williams for his in- struction of the previous day and stated that she could wear the button in the warehouse at any time that she wished. Subsequently Williams and other employees wore union buttons at the plant without incident. The judge concluded that these facts established an 8(a)(3) violation by relying on a series of infer- ences. Initially, the judge inferred that Mary Kay Klapheke told her father she saw Williams and Brown exchange an authorization card in the lunchroom. The judge supported this inference by simply discrediting General Manager Klapheke's testimony to the contrary and further finding that the opposite must be true. In this regard, we note the absence of any evidence in the record to the effect that Mary Kay Klapheke was aware of union activity at the plant, or that she understood much less reported the lunchroom incident to her father. The circumstantial evidence of her possible casual observation of the card and booklet exchange is alone insufficient to support a finding that the Re- spondent knew of its employees' union activities through Mary Kay's communications with her father. The judge alternatively relied on yet another in- ference. Thus, he found that even if Mary Kay Klapheke did not tell her father about the Brown- Williams exchange, "it is only logical to infer that somebody in the lunchroom did." The judge's reli- ance on Haynes Industries, 232 NLRB 1092 (1977), in this context is, however, misplaced. In citing Haynes Industries as controlling, the judge conclud- 284 NLRB No. 97 880 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ed that as in Haynes Industries, the timing between the "first open and obvious solicitation of union support" and the layoffs "establishe[d] the elements of knowledge of the alleged discriminatees' union activity and animus against that activity." In this respect, Williams' credited testimony was that all solicitations for union support prior to 20 June were conducted in a "discrete fashion." According- ly, it was the 20 June card and booklet exchange in the lunchroom "only a few feet from Mary Kay Klapheke" that the judge described as the "first open and obvious solicitation." The judge's corre- sponding application of the Haynes Industries ra- tionale to this set of circumstances results in a flawed, circular analysis, because the judge relied solely on the timing of the lunchroom exchange and the layoffs, the significance of which is derived from his initial inference that the Respondent had knowledge of the lunchroom exchange, which as set forth above is weak at best. Thus, this case lacks the additional factors present in Haynes In- dustries. In this regard, the facts considered in HayneS In- dustries lend much greater support to the inference taken there. Here, unlike the situation in that case, the General Counsel proferred no evidence to the effect that management representatives or person- nel circulated through the areas where employees solicited authorization cards. Furthermore, the dis- criminatees in Haynes Industries were, unlike Brown and Williams, the most senior rank-and-file employees. In this regard, although three employ- ees retained by the Respondent had less seniority than Brown and Williams, the General Counsel failed to rebut the Respondent's evidence that these employees possessed experience and skill superior to that of Brown and Williams. Further, unlike Haynes Industries, independent evidence of the Respondent's alleged antiunion animus here does not lend significant further sup- port to the judge's timing-based inference of dis- criminatory conduct. Thus, the employer in Haynes Industries interrogated employees regarding their union sympathies, threatened to discharge union supporters, solicited employee signatures on an an- tiunion petition, and discharged the only employee who refused to sign that petition. Here, in contrast, the judge's evidence of the Respondent's alleged antiunion animus consisted of the Respondent's 25 June letter "appealing to employees not to go to the Union meeting and instructing them not to sign union cards," and General Manager Klapheke's statement to Williams, after she was recalled, that she must refrain from wearing a union button. In reviewing this evidence supportive of the judge's fmding that the Respondent harbored antiunion animus, it must be determined whether the hostility or opposition to the union manifested is strong enough to support a conclusion that the Respond- ent was willing to violate the law, by discriminat- ing against employees, in order to keep the Union out. See Fibracan Corp., 259 NLRB 161, 171-172 (1981). Here, we find that the Respondent's 25 June letter to employees does not reflect the level of antiunion hostility commensurate with an 8(a)(3) violation. Further, with respect to General Manag- er Klapheke's instruction to Williams that she must not wear a union button, we note that Klapheke re- tracted this instruction only 24 hours later when he apologized to Williams and assured her that she could wear the button. Particularly in view of Kla- pheke's prompt disavowal of this conduct, we find that the union button incident similarly does not evidence antiunion hostility sufficient to uphold the judge's determination that the Respondent violated Section 8(a)(3). Finally, we turn to whether the judge's finding of unlawful motivation for the layoffs may be upheld through his reliance on General Manager Klapheke's failure to articulate a reason for retain- ing Minnie Russel, who was hired on the same day as Williams and Brown. In Briarwood Hilton, 222 NLRB 986 (1976), we recognized that the weak- ness of an employer's explanation for discharging an employee, in the context of that employer's vig- orous opposition to unionization, was a factor rais- ing a suspicion of unlawful motivation underlying the discharge. We nevertheless observed that mere suspicion in this regard is not sufficient to support an 8(a)(3) violation. Id. As we stated in that case: The employer's explanation for a discharge is a factor which is weighed in determining whether the action was unlawful. However, a feeble reason for the termination, alone, or to- gether with evidence that the employer knew of the dischargee's union sympathies and was opposed to an ongoing organizational cam- paign, does not spell out an unlawful dis- charge. To find a violation of Section 8(a)(3) the evidence must permit a positive finding (which may be based on circumstantial evi- dence) that union activity was a contributing factor in the decision to discharge the employ- ee. Suspicion that such was the case is not enough. Id. at 991. Here, in view of our finding that the record lacks probative evidence that the Respond- ent knew about organizing efforts at the plant, we conclude that the Respondent's failure to offer a reason for retaining Minnie Russel falls short of es- tablishing its alleged discriminatory motivation. RAYSEL-IDE, INC. 881 In sum, we find that the General Counsel has failed to establish a prima facie case that the Re- spondent violated Section 8(a)(3) and (1) of the Act in laying off Williams and Brown. Accordingly, we do not further address the Respondent's rebuttal evidence, 2 and we shall dismiss this allegation of the complaint. As to the separate allegation of an 8(a)(1) viola- tion, we find merit in the Respondent's contention that, even assuming it violated Section 8(a)(1), as alleged, the Respondent effectively repudiated this violation when General Manager Klapheke recant- ed his prior statement to Williams that she must remove a union button and never again wear it at the plant. See Passavant Memorial Area Hospital, 237 NLRB 138 (1978). Thus, the record reveals no evidence that anyone other than Williams heard this statement, and Klapheke retracted it only 24 hours later when he apologized to Williams, assur- ing her that she could wear the union button, at the plant, whenever she pleased. Moreover, this re- pudiation of General Manager Klapheke's 15 July statement, which occurred in a context free from other unlawful conduct, apparently was successful as evidenced by the fact that Williams and other employees susbsequently wore union buttons at work. We thus find that the Respondent's repudi- ation was adequate and shall therefore dismiss this remaining allegation of the complaint, ORDER The complaint is dismissed. 2 We note that the judge inadvertently erred in stating that Klapheke testified that he saw employees "loafing around." Klapheke rather testi- fied that Arnie Miller, the Respondent's division manager, told Klapheke that he saw some "boys" loafing around during his visit to the plant Vyrone Alex Cravanas, Esq., for the General Counsel. James U. Smith III, Esq. (Smith & Smith), of Louisville, Kentucky, for the Respondent. DECISION STATEMENT OF THE CASE DAVID L. EVANS, Administrative Law Judge. This matter was tried before me on 7 October 1986 1 at Louis- ville, Kentucky, upon an unfair labor practice complaint issued pursuant to a charge filed on 25 June by General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union). The complaint, which issued on 8 August, alleges that Raysel-IDE, Inc., a wholly-owned subsidiary of Interstate Drug Exchange, Inc. (Respond- ent), committed violations of Section 8(a)(3) and (1) of the National Labor Relations Act (the Act), by laying All dates are in 1986 unless otherwise specified. off its employees Linda Williams and Ella Brown on 20 June and by instructing an employee (Williams) to remove a union badge on 15 July, after Williams had been recalled from the 20 June layoff. Respondent filed an answer admitting jurisdiction and the status of certain supervisors within Section 2(11) of the Act but denying the commission of any unfair labor practices. Briefs submitted by the General Counsel and Respond- ent have been carefully considered. On the entire record and my observation of the witnesses while testifying I make the following FINDINGS OF FACT 11. JURISDICTION At all times material Respondent, a Kentucky corpora- tion, has been engaged in the business of warehousing and distributing drugs and medical supplies at its Louis- ville, Kentucky facility. During the 12 months preceding issuance of the complaint, a representative period, Re- spondent, in the course and conduct of its business oper- ations, sold and shipped from its Louisville facility prod- ucts, goods, and materials valued in excess of $50,000 di- rectly to purchasers located at points outside Kentucky. Therefore, Respondent is now, and has been at all times material, an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I fmd, that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent operates a drug distribution center (ware- house) and telephone center in Louisville. The employ- ees at the telephone center, who are not directly in- volved, receive orders from customers throughout the country and transfer them to either the adjacent Louis- ville warehouse or to Respondent's other distribution centers that are located in Reno, Nevada, and Amity- ville, New York. The corporate offices of Interstate are also located at Amityville. There are about 25 Louisville warehouse employees. They receive order forms and pick the requested merchandise from stock and place them in boxes of various sizes for shipment to the cus- tomers. Eugene Klapheke Jr. is the general manager of the Louisville warehouse; Frank Bowman is the assistant general manager. The Louisville warehouse has been in operation for 13 years; never before the events of this case had there been a layoff of any warehouse personnel. In early June Williams began talking with her fellow employees about union organization. She discussed the idea with her husband, Guy (Tommy) Williams, who was then a steward for Local 89 at the plant of another employer located in Louisville area. Guy advised Linda to delay her activities because he had heard a rumor that Respondent may have been considering moving its oper- ations to another location. Later in the month, according 882 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD to the uncontradicted testimony of Linda Williams, Kla- pheke approached a group of employees in the lunch- room and announced that Respondent had signed a 7- year renewal of its lease at the Louisville facility and that Respondent was going to make some structural modifications at the plant. Upon learning this, Linda Wil- liams reported the information to her husband who went to Local 89's hall in Louisville and secured for Linda some authorization cards and union pamphlets. The pam- phlets also had authorization cards attached. On 19 June Frank Bowman approached Williams and told her that she was being "promoted" to handle back orders. This job, which consisted of filling orders that previously had not been filled because of lack of stock, involved a little more responsibility, but it involved no raise in pay. Between 17 and 20 June, Williams distributed 10 or 11 union authorization cards and pamphlets, usually in the restroom or in the parking lot, away from discernible su- pervisory observation. Williams testified that about 9 a.m. on 20 June, a Friday, she spoke to employee Janice Bush. At the time Bush was standing at arm's length from Mary Kay Klapheke, daughter of Eugene Kla- pheke, who was also a warehouse employee at the time. According to Williams: "I told her that Tommy was going to call and tell us about the Union meeting. And she [Bush] said, 'all right." Williams further testified that at the noon lunchbreak on 20 June she was sitting at a table in the lunchroom with Ella Brown and Minnie Russel. Neither Brown nor Russel were called to testify. At another table, which was about 6 feet from Williams' table, Bush and seven other employees, including Mary Kay Klapheke, were sitting. According to Williams, she asked Brown if Brown had put her union card in the front seat of Wil- liams' automobile as the two employees had previously arranged. Further, according to Williams, Brown replied, "No, I forgot," and then took a signed union card and a union booklet out of her purse and handed them to Wil- liams across the lunchtable. Williams further testified that while Mary Kay Kla- pheke said nothing to either her or Brown, she did look directly at the two employees as the union literature was exchanged. After receiving this literature, Williams placed it along with other cards and booklets she had in a plastic container that she kept in the lunch area. On the same day, 20 June, Williams' husband called her and told that there would be a union meeting after the employees got off work on 25 June. Williams further testified that she told Bush and eight or nine other employees about the union meeting scheduled for 25 June during the re- mainder of the workday. Quitting time was 4:55 p.m. Between 3 and 3:30 p.m., Klapheke called Williams and Brown to his office. Ac- cording to the testimony of Williams, Klapheke told the two employees that the Amityville office had called and told him to lay off "three or four people." Klapheke told the women that they were two of those being laid off. Klapheke told Williams that she was laid off immediate- ly, but that Brown could finish the day because he knew she needed to ride with another employee who was not being laid off. Williams asked why Dorothy and Mary Ellen Stewart, who were junior to both Williams and Brown, were not being laid off, and Klapbeke replied, "I hired them because they were more qualified." Brown said nothing during the meeting. Although 20 June was a Friday, the payroll period ended the following Tuesday, 24 June. On 25 June, over the signature of Bowman, the em- ployees of Respondent were sent a letter concerning the organizational drive by Local 89. The first five para- graphs of the letter are the usual campaign-type propa- ganda generally arguing against the employees' support- ing the Union. However, the concluding paragraphs are: Now is the time to stop this Union campaign. Don't sign a Union authorization if you are asked to. Don't bring a treacherous group like the Teamsters into this plant. You don't need the Teamsters and nei- ther do we. The reason I wrote this letter today is because Gene is in the hospital recovering from a cataract operation and we understand there is a Union meet- ing tonight. Gene and I found out about the Union campaign yesterday and he echoes the thoughts in this letter. It's our opinion you don't need the kind of trouble this Union is capable of causing. The best way to avoid the problems of the Teamsters is to avoid the Union. Stay away from the meeting tonight and don't sign an authorization card. [Emphasis in origi- nal.] On 15 July Bush and Williams were recalled to work. On that day Williams wore a Teamsters Union button which was 2-1/4 inches in diameter. In addition to a "smiley face" the button had in large print at the top the word "smile" and at the bottom it had "Local 89" also in large print. Just above the legend "Local 89" the button had, in smaller print, "The Teamsters are coming." At each corner of the mouth of the "smiley face" was the emblem of the Teamsters International Union. Williams wore the button all day, and at quitting time she was ap- proached by Klapheke. According to Williams, Kla- pheke stated, "You take that pin off and don't you ever wear it in here again." Williams replied, "Yes sir. Thank you sir." Janice Bush, who was terminated on the same day that Williams and Brown were laid off, testified on behalf of the General Counsel. Under direct examination she testi- fied, consistently with Williams, that on the morning of 20 June, while she was standing next to Mary Kay Kla- pheke, Williams addressed her and stated that "Tommy," Williams' husband, "was going to check into setting up a union meeting." On cross-examination, however, Bush acknowledged that Williams did not use the word "union" in stating that her husband was going to set up a meeting. Bush had no reason to retract her direct testi- mony unless the retraction were true; therefore, I fmd that the word "union" was not used by Williams as Wil- liams testified. Bush also testified, in accord with Williams, that Brown passed a union card and booklet to Williams in the lunchroom on 20 June. Bush testified that Brown and RAYSEL-IDE, INC. 883 Williams were sitting at one table and she, Mary Kay Klapheke, and another group of employees, were sitting at the other table "right across" from the Williams- Brown table. However, Bush, on cross-examination, ad- mitted that she had no idea if Mary Kay Klapheke saw the card exchanged. Klapheke reports to Corporate Division Manager Arnie Miller whose office is located at Interstate's Am- ityville facility. Miller did not testify. Klapheke testified that Miller makes quarterly visits to the Louisville plant and that he made such visits 9 through 13 June. Kla- pheke testified that during that visit Miller told him "to reduce the work force and—by four, if I could, and that he wanted to cut back on some of the hours." Klapheke testified that in a telephone call on 19 June, after Miller had returned to Amityville, he asked Miller to put his in- structions in writing because the plant had never had a layoff before. By letter dated 20 June, the day of the lay- offs of Williams and Brown, Miller wrote Klapheke: Supplementing my last visit, I fmd it very desira- ble if you would follow through on the following two points. No. 1 - Cut back on your personnel by at least 4 people. No. 1 - Cut back hours to four hours per person. Klapheke testified that he received this letter from Miller on Tuesday, 24 June. Klapheke testified that on 20 June he terminated Janice Bush and laid off Williams and Brown. He testi- fied that in making the layoff selection he reviewed the payroll in order of hiring dates. The employee with the least current service was Kenney Dawes. Klapheke testi- fied that he did not select Dawes for layoff because Dawes had a year's service previously and Dawes could make large cardboard boxes and perform several other warehouse functions that other employees could not. The next employees were sisters Dorothy and Mary Ellen Stewart. Mary Ellen had been on sick leave for some time, and Klapheke testified that she was not con- sidered for layoff. Dorothy Stewart, according to Kla- pheke, was retained because she had prior experience with another employer and could pick stocked goods ef- ficiently. Thereafter came Williams, Brown, and Minnie Russel, all whom were hired on the same date, 29 No- vember 1985. Klapheke further testified that Brown was "slow in learning, she was slow in picking, she was slow in packing and she was just slow all the way around." On cross-examination Klapheke was asked and testified: Q. Well, why did you choose Linda [Williams] instead of Minnie Russel? A. No specific reason. Q. 'sib specific reason. A. I had just felt—I felt that maybe Minnie was doing a better job than Linda. Q. Based on what? A. My feelings, my gut feeling. Q. I that it? A. Uh-huh, between the two. Klapheke was not asked for his reasons for terminating Bush, rather than selecting her for layoff, at the same time; the complaint does not allege that the termination of Bush was a violation. When Bush was terminated and Williams and Brown were laid off on 20 June, they were part of a 25 employ- ee complement. Williams and Brown were recalled on 15 July. Between the dates of the layoff and the recall, five additional employees quit, and there were no new hires. Klapheke testified that to satisfy Miller's order to reduce employment costs, he thought it would be necessary to reduce the man/hours per week below 800. The termina- tion of Bush, Williams, and Brown did that, and the ter- minations of the five other employees brought it closer to 700 man/hours per week. Klapheke testified that Wil- liams and Brown were recalled to help replace the man- power lost when the five other employees unexpectedly quit. Klapheke acknowledged that on the day of Williams' return, 15 July, he saw her wearing a Teamsters Union button and instructed her to take it off and never wear "anything like that around the warehouse anymore." Klapheke further testified that after he did so, he con- sulted counsel and found out that he could not legally issue such an instruction. On 16 July, as Williams ac- knowledged on cross-examination, Klapheke approached her and stated that he apologized for his instruction of the previous day and stated that she could wear the button in the warehouse at any time that she wished. Thereafter Williams, and some other employees, contin- ued to wear union buttons. B. Analysis and Conclusions At noon on 20 June a union card and booklet were passed from Brown to Williams only a few feet from Mary Kay Klapheke. That afternoon, indeed within 3 hours, Brown and Williams were laid off without prior warning, before the end of the workday, before the end of the pay period, and they were the only employees laid off. Klapheke denied that his daughter told him what she saw in the lunchroom, and knowledge is an element of proof, sine qua non, of a violation of Section 8(a)(3). Therefore, Klapheke's denial must be examined. Klapheke was a particularly unbelievable individual. He did too much to guild the lily as he testified that his daughter told him nothing about the incident because "what goes on at work stays at work; what goes at home stays at home. We do not talk business at home." The inception of a union organizational attempt is one of the most dramatic events that can happen to a workplace; to say that it was not discussed between father and daugh- ter ("at home" or any place else) is to argue against the realities of human nature and and the usual tendencies of familial discourse. The denial by Klapheke is too much to believe, and I do not. I fmd the opposite of Kla- pheke's testimony to be the truth: Mary Kay Klapheke told her father about what took place in the lunchroom on 20 June. But even without indulging the specific inference that it was Mary Kay who told Klapheke of what happened at the lunchroom on 20 June, it is only logical to infer 884 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD that somebody in the lunchroom did. In Haynes Indus- tries, 232 NLRB 1092 (1977), the plant involved had, as here, an employee complement of about 25 employees. At a meeting of employees, four were selected to be in- plant organizers. Four days later three were fired and one was promoted out of the unit. Although there was, as here, no direct evidence of knowledge, the Board found: "The abruptness, timing, and specific impact of the discharges is probative evidence of Respondent's knowledge and motive." Such is the case here. The two employees involved in the only open and obvious solici- tation in the brief campaign 2 were immediately laid off after that solicitation. The impact of such layoffs cannot be disputed. All the employees who saw the exchange, and those who later heard about it, must necessarily have concluded that what followed after the exchange fol- lowed from it. Few actions could produce a more devas- tating impact on an incipient organizational attempt than the immediate removal of those who engaged in the first open and obvious solicitation of union support. That is, to presume knowledge of that open and obvious activity in this case is to do no more than presume that Respond- ent knew what it was doing. Therefore, the factor of timing of this case, as in Haynes Industries, establishes the elements of knowledge of the alleged discriminatees' union activity and animus against that activity. Other evidence of animus is con- tained in Bowman's letter of 25 June appealing to em- ployees not to go to the union meeting and instructing them not to sign union cards. Also the 15 July instruc- tion by Klapheke that Williams was never again to wear a union button in the plant is further evidence of animus toward the exercise of statutory rights by Respondent's employees. Accordingly, I conclude that the General Counsel has established a prima facie case of unlawful discrimination in the layoffs of Brown and Williams. Since the prima facie case has been presented, the issue becomes whether Respondent has met its burden under Wright Line, 3 to demonstrate that the same action would have taken place even in the absence of protected con- duct. The burden is not one of just coming up with some story that the General Counsel must refute. As stated in Roure Bertrand Dupont, Inc., 271 NLRB 443 (1984): Following the issuance of our Wright Line deci- sion certain courts of appeals held that the burden [which is] shifted to an employer once the General Counsel's prima facie case is demonstrated is one of production, i.e., that an employer can rebut the General Counsel's prima facie case by simply pro- ducing evidence that a legitimate reason for the action existed. The Supreme Court rejected that po- sition, however, in NLRB v. Transportation Manage- ment Corp., 462 U.S. 393 (1983). Thus it is now clear that in rebutting the General Counsel's prima face case—that the protected conduct was a "moti- vating factor" in the employer's decision—an em- 2 Williams testified that before 20 June all solicitations were done m discrete fashion. 3 Wright Line, 251 NLRB 1083 (1980), enfd as modified 662 F 2d 899 (1st Or 1981), cert. denied 455 US 989 (1982) ployer cannot simply present a legitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. The evidence presented by Respondent herein does not preponderate in favor of a finding that Brown and Wil- liams were laid off for nonviolative reasons. The layoff was timed according to no business exigen- cy. Respondent had just signed a new 7-year lease, and Williams had just been given new job responsibilities. These circumstances are not consonant with need for a layoff or, specifically, a need to lay off Williams. While Klapheke testified that employees had been "loafing around" before Miller visited the plant in the week of 13-19 June, nothing was done about it then, nor the fol- lowing week, until Brown passed a union card to Wil- liams. Certainly, Brown and Williams were not laid off as they "loafed" around; indeed, there is no showing that they were ever idle before the layoffs. Certainly, there was no business exigency for not letting both employees work to the end of the pay period; and, certainly, there was no business exigency for not letting Williams, as well as Brown, finish the workday. That is, the precipi- tous implementation of a layoff, unprecedented in the 13- year history of the warehouse, is not indicative of legiti- mate business considerations. The precipitous layoffs are, rather, indicative of speedy recrimination for the exercise of Section 7 rights. The explanation for a layoff is the essence of contriv- ance. Klapheke testified that during Miller's 6-13 June visit he was instructed to get rid of three or four em- ployees, but, because there had never been a layoff at the warehouse, Klapheke told Miller he wanted the instruc- tions in writing. Respondent would have the Board to believe that it is a mere coincidence that Miller did not get around to dictating the letter ordering the layoffs until the ' very day Brown passed the union literature to Williams in front of Mary Kay Klapheke. I firmly be- lieve, and find, that the letter from Miller to Klapheke was generated as a result of the union activity, and the theory of "coincidence" is no more than a concoction. Moreover, it is to be noted that the 20 June letter was not received until 24 June, although Klapheke testified that he told Miller that he had to have the letter because there never before had been layoff at the warehouse. The fact that Klapheke went ahead ,without the letter and laid offBrown and Williams on 20 June further demonstrates that the letter was manufactured to support a scenario rather than to allay any legitimate concern Klapheke may have held. The evidence Respondent relies oh to persuade the Board that the same action would have been taken even in absence of protected conduct is of a totally self-serv- ing nature. Bowman, Klapheke's immediate subordinate, was not called to substantiate the conclusionary testimo- ny advanced by Klapheke that there were too many em- ployees. Klapheke admitted that he did not even consult Bowman in the decision to lay off employees or in the selection of Brown and Williams for the layoff. Bowman was the immediate supervisor of the unit employees; if RAYSEL-IDE, INC. 885 any person could have observed whether the "loafing around" was prevalent, or supported the decision to con- duct a reduction in force, it was he. If merit was in- volved in the selection process, as Klapheke claimed, the direct supervisor would surely have been consulted.4 That is, if the layoff decision had any legitimacy, Bowman would have been consulted. Moreover, if Bow- man's testimony would have supported Klapheke's, Bowman would have been called to testify. He was not. Instead Respondent relied on the testimony of Klapheke, and that testimony took an avenue of explanation that was seemingly impervious to cross-examination—that he, the second-line supervisor, at some point, saw employees "loafing around." All this can hardly be disproved; but it hardly constitutes probative evidence either. Klapheke's testimony more appears to be, and I find and conclude that it is, a post hoc rationalization comprised of pure conclusions which are devoid of any support other than the self-serving testimony of Klapheke, himself. Accordingly, I discredit Klapheke's testimony that there was a legitimate reason for the layoffs on 20 June. Even if there had been a legitimate reason for a layoff of some employees, Respondent has come forward with no legitimate reason for selecting Brown and Williams. The General Counsel has made no attempt to disprove Klapheke's testimony that Dorothy Stewart and Kenneth Dawes were employees superior to, or more experienced than, Brown or Williams. Also there was no rebuttal by the General Counsel that Brown was a slow employee, a reason Klapheke cited for not retaining Brown. Howev- er, Brown and Williams were hired on the same date, 28 November, as Minnie Russel who was not laid off. When asked why Respondent retained Russel rather than Wil- liams, Klapheke replied: "No specific reason . . . my feelings, my gut feeling." In this case, retaining Minnie Russel for no reason amounts to laying off Linda Wil- liams for no reason. There prevails, of course, the litany that an employer may rid itself of an employee for "a good reason, a bad reason or no reason at all," as long as it is not a reason proscribed by the Act. However, the failure to give a reason for discharging, or laying off, an employee actual- ly increases the suspicion that the employer's action was unlawful. As stated, in a discharge case, by the Fourth Circuit in Neptune Water Meter Co. v. NLRB, 551 F.2d 568 (1977): The rule is that if the employee has behaved badly it won't help him to adhere to the Union, and his employer's anti-union animus is not of control- ling importance. But if the employee is a good worker and his breach of the work rules trivial, the more rational explanation for discharge may be in- vidious motivation. Such motivation can be found from the absence of any good cause for discharge. 4 It is to be noted that in arguing that the "small plant" theory for imputing knowledge of union activity should not apply to this case, Re- spondent argues that in a warehouse such as that involved herein supervi- sors such as Klapheke had no opportunity to observe the employees if they had been engaging in union activity The same inability to observe would seemingly affect Klapheke's ability to appraise the employees' work abilities, as well as observe their union activities This must be so unless we are wilting to assume something we know to be false: that businessmen hire and fire without any reason at all. Of course, the same reasoning applies to layoff cases as well. That is, Klapheke's citing "no specific reason" for retaining Russel and laying off Williams hardly satisfies Respondent's burden under Wright Line. Moreover, Brown's slowness was something Respondent had put up with, right until the day she passed the union card and booklet to Williams in front of Mary Kay Klapheke in the lunchroom. This is discrimination in its purest form.5 Finally, Respondent may take no refuge in the fact that no new employees were hired before Brown and Williams were recalled on 15 July. To a point, any em- ployer can "make do" with fewer employees. This is an easier thing to do in cases such as herein where the em- ployee complement is relatively unskilled. The gap could have been filled by more efficient management tech- niques or making the other employees work harder or longer, or just by letting some work "slide." But what- ever was done to get the work out between 20 June and 15 July, it could not lawfully have been done by select- ing Brown and Williams for layoff on the basis of their protected union activities. In summary, I find that shortly after Respondent re- newed its lease, and Williams was given additional job responsibilities, Williams engaged in protected union ac- tivities, including receiving a signed union authorization card from Brown on 20 June in the presence of Mary Kay Klapheke. That same afternoon Brown and Wil- liams were subjected to a layoff which was implemented before the end of a pay period, and even before the end of the workday, and which layoff was unprecedented in Respondent's 13-year history. The timing of this layoff, coupled with the animus expressed in Respondent's 25 June letter to all employees, and in the 15 July instruc- tion by Klapheke to Williams to remove her union button, establish a prima facie case of discrimination against Williams and Brown. Respondent has failed to es- tablish that either the layoff, or the selections for layoff, were done for legitimate business reasons; Respondent has therefore failed to meet its burden under Wright Line, Accordingly, I find and conclude that, by the 20 June layoffs of Brown and Williams, Respondent has violated Section 8(a)(3) and (1) of the Act. The final matter to consider is the 15 July instruction by Klapheke to Williams that she remove her union button and never wear it in the plant again. Respondent does not argue that Williams has no right to wear the button or that Klapheke had a right to so order Wil- liams. Respondent does argue that the violation was de minimis and that Klapheke effectively repudiated his own conduct on the following day by his apology and assurance to Williams that she could wear the button in the plant at any time she pleased. 5 See, for example, Budd Mfg. Co. v. NLRB, 138 F.2d 86 (3d Cir. 1943), in which the employer suffered an amazing number of failings and derelictions until the discrimmatee engaged in unwanted protected activi- ty—then he was discharged. 886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Respondent cites Passavant Memorial Area Hospital, 237 NLRB 138 (1978), which is the law on the issue of repudiation. As stated in Passavant: It is settled that under certain circumstances an employer may relieve himself of liability for unlaw- ful conduct by repudiating the conduct. To be ef- fective, however, such repudiation must be "timely," "unambiguous," "specific in nature to the coercive conduct," and "free from other proscribed illegal conduct." Douglas Division, The Scott & Fetzer Company, 228 NLRB 1016 (1977), and cases cited therein at 1024. Furthermore, there must be adequate publication of the repudiation to the em- ployees involved and there must be no proscribed conduct on the employer's part after the publica- tion. Pope Maintenance Corporation, 228 NLRB 326, 340 (1977). And, finally, the Board has pointed out that such repudiation or disavowal of coercive con- duct should give assurances to employees that in the future their employer will not interfere with the exercise of their Section 7 rights. See Fashion Fair, Inc., 150 NLRB 1435, 1444 (1966); Harrah's Club, 150 NLRB 1702, 1717 (1965). The criteria of Passavant are stated in the conjunctive; all must be satisfied before an employer may escape liability for its unfair labor practices. Here Respondent is not "free from other proscribed il- legal conduct." The very employee who received the il- legal instruction had just returned from an unlawfully imposed layoff, as I have found herein. As would be ob- vious to any employee who knew of the treatment of Williams (and Brown), the instruction to remove the button had its origin in the same motivation which caused the layoffs. Moreover, there was no "adequate publication" of the attempted repudiation, another re- quirement of Passavant. Indeed, there was no publication at all, just a one-on-one communication. Even though only one employee received the instruction, and even though the other employees, including Williams, contin- ued to wear union buttons thereafter, this communication was inadequate to repudiate effectively Respondent's conduct because Williams was the principal organizer and, logically, all employees would have found out that she had received the instruction, and some, if not all, would have been coerced by the threat implicit in that instruction. Therefore, the violation is not de minimis, and only a generally publicized statement of Respond- ent's repudiation would have sufficed to allay all the fear of all the employees, even if some employees wore but- tons after the instructions.6 6 Cf. Hearst Corp., 281 NLRB 764 (1986); proof that some employees were not coerced, or did not even know of the violation, is not a defense if the conduct otherwise violates Sec. 8(a)(I). Accordingly, I find and conclude that by Klapheke's 15 July instruction to Williams, Respondent violated Sec- tion 8(a)(1) of the Act, and a generally published remedy, as required herein, is necessary to effectuate the purposes and policies of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The actiyities of Respondent, set forth in section III, above, occurring in connection with its operations de- scribed in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. CONCLUSIONS OF LAW 1. Raysel-IDE, Inc., a wholly-owned subsidiary of Interstate Drug Exchange Inc. is an employer within the meaning of Section 2(2) of the Act and is engaged in commerce or in an industry affecting commerce within the meaning of Sections 2(6) and (7) of the Act. 2. General Drivers, Warehousemen and Helpers, Local Union No. 89, affiliated with the International Brother- hood of Teamsters, Chauffeurs, Warehousemen and Helpers of America is a labor organization within the meaning of Section 2(5) of the Act. 3. By its conduct in instructing employee Linda Wil- liams not to wear union insignia on company property, Respondent has interfered with, restrained and coerced employees in violation of Section 8(a)(1) of the Act. 4. By its conduct in laying off employees Linda Wil- liams and Ella Brown because of their activities on behalf of General Drivers, Warehousemen and Helpers; Local Union No. 89, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Respondent has discriminated against employees in violation of Sections 8(a)(3) and (1) of the Act. THE REMEDY Having found that Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act, I shall recommend that it be ordered to cease and desist from engaging in such unfair labor prac- tices. I shall further recommend that Respondent be or- dered to pay backpay, with interest, to Linda Williams and Ella Brown for losses they may have suffered be- cause of the discrimination against them. Backpay is to be computed on a quarterly basis in the manner pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest as established in Florida Steel Corp., 231 NLRB 651 (1977); see generally Isis Plumbing Co., 128 NLRB 716 (1952). [Recommended Order omitted from publication.]