Tlt-Babcock, Inc

TLT BABCOCK INC 163 TLT-Babcock, Inc and Glenn A Heyburn and Joseph P Marangoni Cases 8-CA-20075 and 8-CA-20076 March 13, 1989 DECISION AND ORDER BY MEMBERS CRACRAFT, HIGGINS, AND DEVANEY On August 18, 1988, Administrative Law Judge Irwin Kaplan issued the attached decision The Re- spondent filed exceptions and a supporting bnef, and the General Counsel filed a reply bnef to the Respondent's exceptions 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 briefs and has decided to affirm the judge's rulings, findings, I and conclusions2 and to adopt the recommended Order ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, TLT-Bab- cock, Inc, Medina, Ohio, its officers, agents, suc cessors, and assigns, shall take the action set forth in the Order I The Respondent has excepted to some of the judge s credibility find rags The Board s established policy is not to overrule an administrative law judge s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings In sec II B 1 par 2 of his decision the judge inadvertently referred to the date of the January 1986 reorganization as 1988 2 We agree with the judges findings that Glenn A Heyburn and Joseph P Marangoni were selected for layoff for discriminatory reasons and that the Respondent s alleged reasons for selecting them are pretex tual Because of this finding we find it unnecessary to pass on the judge s finding that the record does not support the Respondent s assertion that legitimate business conditions dictated the November 6 1986 layoffs Mark Carissimi Esq, for the General Counsel William A Ziegler Esq (Sullivan & Cromwell), of New York, New York for the Respondent DECISION STATEMENT OF THE CASE IRWIN KAPLAN, Administrative Law Judge These consolidated cases were heard in Cleveland, Ohio, on October 14 and 15 1987 The underlying charges in Case 8-CA-20075 were filed by Glenn A Heyburn on May 4 1987, and in Case 8-CA-20076 by Joseph P Marangoni on that same date These charges gave rise to an order consolidating cases, consolidated complaint, and notice of heanng dated June 18, 1987 (slightly amended at the heanng) The essence of the consolidated complaint is that TLT Babcock, Inc (the Respondent), permanently laid off employees Heyburn and Marangoni because it be lieved that they would support or favor the unioniza tion of Respondents employees' and because they en gaged in concerted activities for their mutual aid or pro tection regarding working conditions and that the Re spondent thereby violated Section 8(a)(3) and (1) of the National Labor Relations Act (the Act) The Respondent filed an answer (amended at the hear ing) conceding, inter alia, jurisdictional facts and the su pervisory status of certain individuals, but denying that it committed any unfair labor practices Based on the entire record, including my observations of the demeanor of the witnesses as they testified, and after careful consideration of the posttnal briefs, I make the following FINDINGS OF FACT I JURISDICTION The Respondent, TLT Babcock, Inc, is a Delaware corporation engaged in the manufacture of industrial fans for the power generation industry The Respondent maintains its administrative headquarters in Fairlawn, Ohio, and its production facility in Medina , Ohio It is alleged the Respondent admits , and I find, regarding the aforenoted business operations, that the Respondent an nually sells and ships products, goods, and materials valued in excess of $50,000 from its Ohio facilities direct ly to points outside the State of Ohio It is alleged, the record supports, and I find that the Respondent is an em ployer engaged in commerce within the meaning of Sec tion 2(2), (6), and (7) of the Act II THE ALLEGED UNFAIR LABOR PRACTICES A Background and Sequence of Events The Respondent is engaged in the business of manufac turing and repairing industrial exhaust fans used pnman ly for the power generation industry It has had its ad ministrative headquarters in Fairlawn Ohio, since the early 1970s and a production facility in Medina Ohio since 1977 The facilities are approximately 17 miles apart There are approximately 70 employees employed at the Fairlawn location and 13 and 15 employees at the production facility in Medina None of Respondents em ployees have been represented for collective bargaining purposes, no representation petition has ever been filed, and there is no evidence of any union organizing for any of these employees Early in 1983 some of the employees at Medina ex pressed their displeasure to each other concerning man datory overtime and, to a lesser extent, safety conditions In the spring of 1983, employee Joseph Marangoni (one of two alleged discriminatees) wrote a letter to then president of Respondent Joseph Dziewisz, outlining em ployee dissatisfaction over working conditions The letter was signed A concerned employee, ' and did not other 293 NLRB No 23 164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD wise identify its author Marangont had Glenn Heyburn (the other alleged discriminatee) deposited the letter in the interoffice mail at Fairlawn for delivery to Dzlewisz at that time, Heyburn was employed at Fairlawn, but was soon after to be transferred to Medina (for nondis criminatory reasons) Still, during the spring of 1983 and approximately 1 week after Heyburn transferred to Medina, Dziewisz convened a meeting of all production employees in the cafeteria at the Medina plant and excluded all managerial and/or supervisory personnel The plant manager at that time was Mike Hug and he too was excluded from the meeting Dziewisz told those assembled about the letter he had received from a concerned employee (ACE) re garding employee displeasure over working conditions Further, Dziewisz indicated that he was upset and stated that he had called this meeting to learn about and discuss the working conditions that triggered the letter He also invited employees to feel free to discuss any of their problems with him According to Marangoni, without contradiction, after the aforenoted meeting, he was told by Ed Johnson, his immediate supervisor that Plant Manager Mike Hug was out to get the person who wrote the ACE letter A short time later, as testified by Marangoni, Hug summoned Marangont to his office and there stated that he under stood that he (Marangoni) wrote the ACE letter Maran govt denied writing the letter to which Hug assertedly responded, I still think you did (Hug did not testify and was still employed by Respondent at the time of the hearing ) Marangont and Heyburn testified that the months fol lowing Dziewisz meeting with employees had not shown any significant change in working conditions Thus in the fall of 1983 they collaborated in composing a leaflet under the acronym A C E which posed a number of questions highly critical of management The leaflet also advised employees that a union representative would be coming out shortly (G C Exh 2) Maran gone and Heyburn posted a copy of the leaflet on the bulletin board in the Respondents cafeteria and spread other copies around employee toolboxes That same morning the leaflet was removed from the bulletin board as well as most of the other copies at the facility by one or more unidentified individuals In August 1983 Daniel Goodrow replaced Ed John son as plant foreman at the Medina facility (Goodrow later became plant manager) According to Goodrow he recalled that he made the following rhetorical comment at that time 'I wonder who would have wrote [sic] such a thing [the ACE leaflet] He also recalled that Maran govt was in the area when he made that comment Mar angoni testified that Plant Manager Hug and Goodrow often referred to him as ACE Although Goodrow ad mitted as much, he asserted that from time to time [e]verybody was calling each other ACE He also ac knowledged that the reference was inspired by the ACE leaflets However, Goodrow denied any knowledge of either Marangoni s or Heyburn s involvement in the ACE leaflets However Goodrow denied any knowl edge of either Marangoni's or Heyburn s involvement in the ACE leaflets or other written material In early January 1984 Marangont and Heyburn, still unhappy over certain working conditions, wrote to Dave Brown, an official of Babcock and Wilcox, Respondent s corporate parent, wherein they traced their anonymous efforts to get mangement to take steps to improve work ing conditions to no avail (G C Exh 9) The letter dated January 9, 1984 and composed mostly by Hey burn, again under the acronym ACE and highly critical of Plant Manager Hug, in its entirety states as follows January 9, 1984 Dear Mr Dave Brown I am a TLT Babcock Medina employee Before I go any further I'd like to tell you why I in jumping the Chain of Command Several months ago an anonymous letter was sent to Mr Dziewisz telling him of problems at the Medina facility, this letter was very specific at times As a result of this letter Mr Dziewisz came out to Medina and had a meet ing with all the shop personnel He asked what the problems were Only a couple people answered since they were not sure that what was said wouldn t get back to Mike Hug The problems that were brought out, we were promised would be taken care of The next day Mike Hug knew every thing that was said so he had plenty of time to make excuses, before he was called in to see Mr Dziewisz Two days later Mike Hug commented to several different people that if whoever wrote that letter had given him a couple weeks he would have handled it This left people wondering what he meant About a week later our foreman Ed Johnson was put on probation The sad part about it was that letter was 100% about Mike Hug, but he was able to turn it around on someone else Two times since then we have went [sic] to Mr Dziewisz about Mike Hug Both times we failed It's to the point now that all this dust straightens [sic] Mike Hug's position with upper management Recently, we were asked if we wanted to sit down and have a gripe session we asked to have Carl Bako there We were told that would be fine if we gave Mike Hug two days with our gripes so he has time to come up with excuses Then we de clined This is why I m writing straight to you, we re tired of excuses Right now if a vote was taken I in sure we could vote a union in Medina We don t really want one but it seems like the only way Now I could write for the next three pages about Mike Hug and why he shouldn t have his job but that can wait There are three problems that I d like to bring up If we could at least see a little hope in these three areas we could avoid what no one wants to happen I Progression verses promotion we were told no one at Medina can be promoted inside Medina any more except, to a supervisory position Now it s a progression (which has no monetary compensation) They tell us that s the way its always been It seems funny that we have different pay scales and responsibilities and abilities in different jobs and TLT BABCOCK INC now their [sic] not promotions That gives little in centive to learn more We don't have a problem with the 3-7% raise just the fact we cant be pro moted II Overtime, Most weeks we work 58 hours This is a lot of overtime For the most part no one really minds working overtime in fact a lot of people depend upon it The problem is though over time is supposingly not mandatory, but we're not even asked anymore if we want to work ten hours a day, we are just scheduled Were still asked to work Saturday though Schedules change so often you can t even make day to day plans, and if you turn down ovetime it's a federal offense III Safety, This is a joke in Medina, Mike Hug is proud of his lost time record, but doesn't do much to keep it We have a monthly safety meeting which is a joke What it turns out all they want is the product out fast and cheap Especially in radial as sembly OSIA [sic] would have something to say In fact, just last week if Mr Dziewisz wasn't in Medina either someone would have been fired or hurt When people get hurt either they are written up or even put on probation Even outside contrac tors on the test stand have said Mike Hug is going to kill someone I hope you will look into these statements Thank you for your time ACE A Concerned Employee cc D E Heyburn i Heyburn testified that approximately 1 week later, Goodrow asked him if he knew who wrote the aforenot ed letter, to which Heyburn replied in the negative At that time, Heyburn had already transferred back from Fairlawn to the production floor at the Medina facility and Goodrow was his immediate supervisor The next day, as testified to by Heyburn without contradiction, Hug called him into his office and also asked whether he knew who wrote the most recent ACE letter When Heyburn indicated that he was not sure, Hug asked him to find out Within a few weeks Hug was transferred to Respondents Fairlawn facility in what was called a lat eral move (Hug was still employed by the Respondent at that location in a marketing position at the time of the instant hearing) Terry Speck became the new plant man ager According to Marangoni and Heyburn, during the period in which Speck served as plant manager, from early 1984 to early November 1986, a much better work ing relationship existed between employees and Speck than had existed with Hug Marangoni characterized Speck as being more people oriented ' As explained by Marangoni You could go to him [Speck] with a prob lem and he would attempt to rectify it if it was within his power Marangoni and Heyburn did not compose or disseminate any written material critical of management or working conditions during this period i D E Heyburn is Glenn Heybu n s father and at the time of the letter was a vice president and member of Respondent s board of directors 165 In October 1984, Marangoni transferred from the pro duction floor to the quality control department, where he remained until a reorganization occurred in January 1986 Along with the reorganization, Marangoni returned to his former position as an assembler on the production floor There, Marangoni was again under the immediate supervision of Goodrow, who told Marangoni that he was happy to have him back According to Robert Smith, while employed by Re spondent in January 1986, he overheard Goodrow say in the locker room area at the Medina plant that I don t want a union to come to TLT because we would go out of business Smith testified that employee Patrick Kelly was in the locker area at the time Goodrow denied that any such conversation took place (At the time Smith testified he was a college student and no longer em ployed by Respondent) Marangoni testified that in the spring of 1986, he had a generally friendly conversation with Goodrow in the latter s office, in which Goodrow stated that he knew that he (Marangoni) had been in volved in writing the letters that led to Hug s departure as plant manager 2 Further, Goodrow assertedly told Marangoni that he (Goodrow) believed that he could rectify any of the problems on the production floor and that it was unnecessary for the employees to be repre sented by a union Marangoni asserted that regardng these comments made by Goodrow, he, Marangoni did not respond Goodrow could not recall any such conver sation and denied telling Marangoni that he knew that he wrote the letters to Dziewisz or Brown (the ACE let ters) In June or July 1986, Goodrow left the Medina plant to become section manager of materials and operations There Goodrow, inter alia, supervised activities relative to purchasing inventory, and production control In November 1986,3 Respondents president was John Finn Goodrow testified that on or about November 1, Finn informed him of another reorganization and, due to a drop in business, there would have to be a reduction in force Finn offered Goodrow one of three choices (1) plant manager at Medina (2) manager of purchasing or (3) a position in project management Goodrow elected to become plant manager at Medina, replacing Terry Speck The latter transferred to Fairlawn where he as sumed many of the same functions previously performed by Goodrow at that location Finn also informed Goo drow that, in line with the reorganization, as plant man ager, he would be reporting to a new operations manag er who would also be housed at the Medina plant Within a few days, Terry McEntee, the new oper ations manager, told Goodrow that a staff meeting had been held and that it was decided to lay off four employ ees two from each of the facilities McEntee had been manager of customer parts and services with no previous knowledge of the employees at the Medina plant Thus 2 Although Marangoni was cross-examined he placed this conversation in the fall of 1986 However as Goodrow was then employed at the Fair lawn location and as I found Marangonr otherwise to be a credible and reliable witnesss I find that this conversation occurred in the spring of 1986 as Marangoni first testified 3 All dates refer to 1986 unless otherwise indicated 166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (as testified to by Goodrow), McEntee asked Goodrow to select the two employees to be laid off at the Medina plant The next day, November 5, Goodrow informed McEntee that he decided to lay off Marangoni and Hey burn According to Goodrow, in arriving at his decision he assessed all 13 production employees then employed at the Medina location in terms of cost to the company [relative to] benefits received from [employees] Goo drow testified that he knew almost immediately that Heyburn would be selected Thus Goodrow noted inter alia, that Heyburn had already been out of work a good portion of that year due to an accident and the Compa ny would suffer least by his departure (Heyburn had suf fered a work related injury in early 1986 whereby he suf fered torn cartilage to his knee ) Goodrow also noted that Heyburn had suffered a number of other accidents that had diminished his capacity to work and that he had a history of horseplay ' for which he received a written warning in January 1986 (R Exh 5 ) Heyburn was also the third highest paid production employee Goodrow assertedly evaluated this salary factor relative to his performance and determined that as there were other employees who could do Heyburn's work, that the latter was a logical person [for the Company] to do without ' According to Goodrow, he followed the same value analysis" in selecting Marangont for layoff as he had with Heyburn In Goodrow s words, TLT was not get ting the best value for their dollars spent Marangont was the highest paid production employee and had also served frequently as a leadperson Although Goodrow acknowledged that Marangont had proven ability, the former also asserted that Marangont had become moody and had ignored him (Goodrow) and other employees ever since the reoganization back in January 1986 which resulted in Marangont leaving the quality control depart ment and returning to production Goodrow did not say anything to Marangont in 1986 about his changed atti tude or more paticularly about his so called moodiness Nor did Goodrow issue any warning in writing to Mar angoni in 1986 On November 6 Goodrow and McEntee notified Marangont at the Medina facility that he had been select ed for layoff They noted that other lower paid employ ees were qualified to perform his duties and that cost re ductions dictated that he, as the highest paid production employee, had to go Heyburn was not at work that day and was notified of the layoff by letter Marangoni testified without contradiction, that on the day of the layoff as he was getting into his car to depart, Speck came over and stated that he was "very sorry and that he had no explanation for what had happened Speck also offered assistance to Marangoni, if needed Marangont asked for a letter of recommendation for another job, which Speck provided about 2 weeks later on company letterhead under Speck s new title, manager, materials and operations (G C Exh 10) By letter dated December 11, 1986 Speck , at Heyburn s re quest, also provided him a letter of recommendation (G C Exh 12) Goodrow testified that he selected Marangont and Heyburn without consulting his predecessor , Plant Man ager Speck, or with input from anyone else According to Goodrow, he drew entirely on his own experiences with production employees at Medina Goodrow also testified that Speck told him after the aforenoted decision was made that he (Speck) would not have selected Mar angoni for layoff B Discussion and Conclusions 1 Credibility This case in large part turns on credibility resoultions If the General Counsels witnesses are credited , it would directly establish certain key elements necessary to sup port a prima facie case For example, former employee Robert Smith testified that he overheard Goodrow say the he opposed a union because [the Company] would go out of business According to Marangoni , Goodrow told him that he knew that he was involved in writing the ACE letters, which led to former Plant Manager Hug s departure Further, Goodrow assertedly told Mar angoni that a union was not needed because he, Goo drow, could handle production problems Goodrow on the other hand denied making such statements and also denied that he had any knowledge or that he even sus pected that Marangont and Heyburn were involved in union or other concerted activities regarding terms and conditions of employment (Tr 356-357) In assessing Goodrow s credibility, I found him to be largely conclusionary and at times inconsistent , elusive, unresponsive and implausible For example, Goodrow testified that after the reorganization of January 1988, which resulted in Marangont s return to the production floor, the latter had become moody and noncommunica tive to him (Goodrow) and other employees According to Goodrow this impacted adversely on Marangont s ability to serve as a leadperson and was a factor in se lecting him for layoff In rejecting Goodrow s unsubstan bated assessment it is noted , inter alia that Goodrow ad mittedly said nothing to Marangont about his attitude nor did he issue anything in writing As noted above Goodrow denied knowledge of any role by Marangoni and Heyburn in union and/or ACE activities I find , however that his testimony in this criti cal area was elusive, inconsistent unresponsive and less than forthright Thus it is noted that Goodrow first denied tht he ever called Marangont or Heyburn ACE (Tr 357) However after the next question was put to Goodrow he asked to go back to his previous answer to be able to respond in my own words Thus instead of responding with a yes or no, Goodrow testified that he never referred to Mr Marangont or Mr Heyburn any more or less than [other employees] (Tr 358) When the same question was again put to Goodrow, this time he finally responded in the affirmative When asked about the circumstances, Goodrow testified as follows It was common in the shop that, when somebody did something the least bit off color you know from time to time, somebody would go up and say, Better watch it Ace (Tr 358 ) TLT BABCOCK INC 167 Goodrow noted that the term ACE had come from the form [ACE letter] that talked about the Union (Tr 360) At another point he asserted that "[e]verybody was calling each other ACE (Tr 361 ) There was no corroborative evidence however, and I reject Goodrow s assertion that employees other than Marangoni and Heyburn were called ACE Noting that Goodrow acknowledged that his reference to ACE was inspired by the ACE letters (Tr 359-360), that he admit tedly called Marangoni and Heyburn ACE , that the subject was common in the shop and that only a rela tively few number of employees (approximately 13 pro duction employees) were employed at the Medina plant, I find it highly unlikely and reject Goodrow' s denials that he had any knowledge of Marangoni and Heyburn vis a vis ACE activities 4 As for the credibility of Marangoni and Heyburn, I found him to be generally consistent, responsive and mutually corroborative, I also found their testimony was otherwise largely supported by record evidence, i e, let ters of recommendation by former Plant Manager Speck Further, it is noted that their testimony was uncontra dicted in critical areas by former Plant Managers Hug and Speck Neither Hug nor Speck testified although they were still employed at the time of the hearing Hug was employed in marketing Speck was the manager of purchasing Because of the foregoing and on consideration of de meanor factors, I find that Marangoni and Heyburn are credible and reliable and credit them over Goodrow in all material areas in conflict 2 The alleged unlawful layoffs Under the Board's causation test,' in 8(a)(3) cases or protected activity under Section 8(a)(1) the General Counsel has the initial burden to make a puma facie showing that the union or other protected activity was a `motivating factor in the employer's disputed action Once accomplished, the burden then shifts to the em ployer to demonstrate that the same action would have taken place notwithstanding the union or other protected activity Wright Line 251 NLRB 1083, 1089 (1980) Here, it is beyond dispute that the ACE material setting forth various employee complaints over working condi tions, which was composed and disseminated by Maran gone and Heyburn, constituted protected concerted ac tivities See generally Meyers Industries, 268 NLRB 493 (1984) (Meyer), adhered to Meyers II, 281 NLRB 1882 (1986) affd sub nom Prill v NLRB, 835 F 2d 1481 (D C Cir 1987) see also Harris Corp, 269 NLRB 733 (1984) It is also noted that this same material raised the potential for employees to turn to a union if the Compa 4In rejecting Goodrow s denials I do not rely on the testimony of former employee Jimmy Piggott According to Piggott in early 1987 Goo- drow told him just in passing that he knew that Heyburn and Marangoni were behind ACE Piggott demonstrated poor recall was not responsive and expressed resentment toward Respondent as a result of his own layoff In these circumstances and on demeanor considerations I reject Piggotts vague account of the conversation in question On the other hand I credit the testimony of former employee Robert Smith who vol untanly left Respondent to attend school I did not detect any bias or hostility on the part of to attend school I did not detect any bias or hos tility on the part of Smith and found him to be responsive and forthright ny failed to adequately address these employee concerns Thus, the ACE letter to Respondent dated January 9, 1984, stated in pertinent part Right now if a vote was taken I in sure we could vote a union in Medina We don t really want one but it seems like the only way (G C Exh 9, par 4 ) The Respondent does not dispute that ACE activities constituted protected action but rather that it did not have knowledge that Marangoni and Heyburn were in volved in such activities Moreover, the Respondent con tends that even with knowledge and a finding a prima facie case, the Company s decision would have been the same on the basis of legitimate nondiscriminatory busi ness reasons I find that the weight of the credible evidence clearly justifies an inference that the protected action in question was a motivating factor in Goodrow s decision in select ing Marangoni and Heyburn for layoffs Thus, I find that the General Counsel has established all the elements nec essary to support a prima facie violation activity, knowl edge, timing and animus First, for reasons stated previously, the credited evi dence disclosed that Marangoni and Heyburn were the principals behind ACE and that Goodrow had knowl edge thereof (See sec 1, Credibility, supra ) With regard to timing, while it is noted that the last ACE letter was written in January 1984 (G C Exh 9), approximately 2 years and 10 months before the layoffs, this hiatus was due largely to the departure of Plant Manager Hug, who was the cause of much of the discon tent In any event, the credited testimony disclosed that then Foreman Goodrow continued to refer to Marangoni and Heyburn as ACE long after their last letter to Re spondent Further Marangoni credibly testified that in the spring of 1986 Goodrow told him that he knew that he (Marangoni) participated in writing the ACE letter, which caused the removal of Hug as the plant manager In these circumstances I view the timing of Goodrow s first official act as the new plant manager to wit, the dis puted layoffs in November 1986 as highly suspicious and a factor tending to support the General Counsels prima facie case As for animus the remaining element, the credited tes timony disclosed inter alia, that Goodrow opposed the union concept and related ACE activities As noted pre viously Smith credibly testified that he overheard Goo drow state that he opposed a union because the Compa ny would go out of business Further Marangoni credi bly testified that during a conversation in which Goo drow had ascribed to Marangoni some responsibility for ACE, Goodrow also told Marangoni that employees did not need a union because he Goodrow could rectify any production problems However even in the absence of such direct testimony reflecting an antiunion animus I find that the total surrounding circumstances justify an inference of unlawful motivation noting particularly that the various reasons given by Goodrow for simultaneous ly selecting Marangoni and Heyburn for layoffs do not stand scrutiny and are pretextual As the Board has ob served A pretextual reason, of course supports an in ference of an unlawful one' Keller Mfg Co 237 NLRB 168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 712, 717 (1978) See also Shattuck Denn Mining Corp v NLRB, 362 F 2d 466 470 (9th Cir 1966), Abbeys Trans portauon Services, 284 NLRB 696 (1987) Having found that the General Counsel has satisfied his initial prima facie burden as required under Wright Line, I turn now to consider whether the Respondent met its burden under the same causation test to wit whether it would have taken the same disputed action absent the protected ACE activities First, I find that the record falls far short of establish ing that business conditions were such that a reorganiza tion or layoff would have occurred absent Goodrow s desire to rid himself of all traces of ACE The only record evidence in support thereof is Goodrow s uncor roborated testimony that a decision was made by senior management for a reduction in force (RIF) Admittedly, Goodrow did not attend any such meetings and had no personal knowledge" (Tr 283) Goodrow also made some vague reference to having seen inter corporate documents on the subject of RIF s that are of a confi dential nature' (Tr 381-382) According to Goodrow, again without any supporting documentation business in general had been declining since 1983 5 In these circum stances, noting particularly a dearth of probative docu mentary evidence and corroborative testimony and as I otherwise did not find Goodrow to be a reliable or cred ible witness, I find that the record does not support his assertion that legitimate business conditions dictated the disputed layoffs in November 6 Assuming arguendo legitimate conditions justified the RIF s in question I find that the Respondent failed to meet its burden of showing that Marangoni and Heyburn were selected apart from their protected activities According to Goodrow he selected Marangoni and Heyburn after a value analysis covering each of the 13 production employees and concluded that the Company would suffer least with their departure Regarding Mar angoni Goodrow noted that he was the highest paid production employee and concluded that [the Compa ny] was not getting the best value for their dollars spent (Tr 72) Goodrow acknowledged that Maran gone was promoted to quality control in 1984 because he was a very good employee and had served in lead ca pacities However Goodrow also asserted that Maran gone became moody and/or noncommunicative to him and to fellow employees and his effectiveness thereby suffered after the reorganization in January 1986 That 5 The Respondent placed in evidence a document indicating that since May 1 1983 through November 7 1986 it had laid off nine employees including Marangoni and Heyburn from the Medina location (R Exh 1) However I find that this document without more is of little probative value For example the record is devoid of any corroborative testimony or supporting documents linking these layoffs to any downturn in busi ness or even to any reorganization 8 Goodrow acknowledged that after he laid off Marangoni and Heyburn he hired some temporary employees who to some degree performed the same tasks as the laid-off employees (Tr 79) The record also dis closed that the Company had long used temporary labor from outside manpower agencies On the other hand I find that Goodrow s testimony explaining the circumstances of such use both before and after the disput ed layoffs was elusive and conclusionary In these circumstances and in the absence of any supporting business records on this subject I find that Goodrow had not adequately explained the hiring of temporary employees after the layoffs change resulted in Marangoni s transfer from quality control back to the production floor The total record persuades me and I find that Goo drow merely seized on this unsubstantiated assessment as a pretext to shield his discriminatory motive Thus it is noted that Goodrow (admittedly) did not communicate his observations to Marangoni orally or in writing al though he was his immediate supervisor from January 1986 until June or July 1986 7 In June or July 1986 and for the next 5 months Goodrow was section manager of materials and operations at the Fairlawn facility where he spent the great majority of his time During that period he no longer possessed any supervisory responsi bilities over the production employees at the Medina plant Yet, notwithstanding this 5 month hiatus, Goo drow made the decision on his own without consulting Plant Manager Speck or seeking input from any other managerial or supervisory official at Medina In the cir cumstances of this case I find Goodrow s failure to do so tends to militate against the legitimacy of his action Indeed, Goodrow acknowledged that, subsequently, Speck told him that he would not have laid off Maran gone In fact Speck volunteered assistance to Marangoni and provided him a highly favorable letter of recommen dation (G C Exh 10) There, Speck, Goodrow s succes sor as manager, materials and operations, wrote, inter alia, as follows [Marangoni] has also shown us the willingness to go the extra mile to complete a particularly difficult as signment It has been a pleasure to work with Joe and I am sure he would provide a positive contribu tion to your organization Marangoni had been employed by Respondent since 1980 On Marangoni s return to the production floor in 1986 he resumed his lead responsibilities and at times in the absence of the plant manager he and one or two other leadmen assumed charge of the Medina facility Yet no warning or notice was provided Marangoni that he was to be permanently laid off until so informed by Goodrow on November 6, 1986, Marangoni s last day at work In the total circumstances of this case noting particu larly a complete absence of corroborative testimony or supporting documentary evidence in any probative sense I find that Goodrow would not have selected Marangoni for layoff absent his ACE activities As the Respondent has failed to satisfy its Wright Line burden I find that Marangoni was laid off in violation of Section 8(a)(3) and (1) as alleged For reasons stated previously, I have also found that the General Counsel has established a prima facie case regarding Heyburn As to Heyburn, I also find that the Respondent has failed to demonstrate that it would have selected him for layoff absent his ACE activities ' Goodrow last evaluated Marangoni back in 1984 before the latter was promoted to quality control There Goodrow noted in an otherwise highly favorable evaluation that Marangoni could be moody However Goodrow also indicated that Marangoni gets along well with his peers and that his overall performance is very good (G C Exh 5 ) TLT BABCOCK INC As noted previously, Goodrow testified that he knew almost immediately that Heyburn would be one of the two production employees selected Goodrow was cog nizant of the fact that Heyburn had not been at work since October and that over the past 3 years he had the poorest attendance of all production employees In sup port thereof the Respondent produced summary docu ments showing that Heyburn missed far more days at work than employees Piggott and Rodriguez, both of whom also had poor attendance records The documents show the hours lost for Heyburn, Piggott, and Rodriguez for the years 1984 1985, and 1986 (R Exhs 3 and 4) I find that the aforenoted exhibits, without more, are of little probative value Thus, it is noted that no records were offered comparing Heyburn s attendance with the remaining 10 production employees for the same period Admittedly, these documents were not relied on by Goo drow and were not in existence when he made his so called value analysis In fact, Goodrow had not seen these documents until some 2 days before the instant hearing Moreover it is noted, inter alia, that both Pig gott and Rodriguez missed approximately three and four times as many hours respectively than had Heyburn in 1985 (Piggott missed 371 hours, Rodriguez 478 hours, and Heyburn 124 hours) Heyburn had been employed by Respondent since July 18, 1977 in a variety of tasks at both locations and was the third highest paid production employee at the time of the disputed layoff According to Goodrow Heyburn s skills most approximated employees Askew and Ward, but they were more reliable I find Goodrow s unsub stantiated assessment of Ward as essentially self serving and incredible It is noted that Ward commenced work ing for Respondent on May 2 1986 Thus I find little reason to lend credence to Goodrow s description of Ward as a much more reliable employee when he had only been employed by Respondent for approximately 6 months In this connection, it is noted that for the bulk of that period Goodrow had no supervisory responsibil ities at the Medina plant and spent most of his time at the Fairlawn location In these circumstances and as Goodrow, admittedly, did not seek nor obtain any input from other Medina plant officials regarding Ward or other production employees, I reject the reliability factor as not supported by the record Another reason cited by Goodrow for selecting Hey burn was his history of horseplay The record dis closed that on January 22, 1986, Heyburn received his only written warning regarding such conduct (R Exh 5) The warning form provides a notice sequence for a second and final written warning which Heyburn never received Goodrow testified about a horseplay incident involving Heyburn and employee Zarbo in the spring of 1986 Then, according to Goodrow s limited and conclu sionary testimony, he observed Heyburn toss Zarbo through the shop door into the office area Although Goodrow noted that Zarbo had an injury to his shoulder soon after this incident he did not know whether the injury was related to the horseplay It does not appear that Goodrow questioned either employee about that in cident Moreover, there is no evidence tending to show that Goodrow reprimanded Heyburn either orally or in 169 writing, although he was still his immediate supervisor at that time In short, I am unpersuaded that horseplay was a factor in the selection process as contended by Goodrow Although Heyburn s employment history8 is somewhat checkered (from very good to acceptable), I am persuad ed that his ACE activities were factored into his selec tion and that the Respondent has not met its burden of showing that Heyburn would have been laid off notwith standing such activities Accordingly, I find that Hey burn was also permanently laid off in violation of Sec tion 8(a)(3) and ( 1) as alleged CONCLUSIONS OF LAW 1 TLT Babcock, Inc, Respondent is an employer en gaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act 2 By laying off its employees Joseph Marangoni and Glenn Heyburn because they supported or favored, or Respondent believed that they would support or favor the unionization of Respondents employees or because they engaged in other concerted activities regarding terms and conditions of employment, the Respondent thereby violated Section 8(a)(3) and (1) of the Act 3 The above described unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Respondent has engaged in cer tarn unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act As I have found that Respondent unlawfully laid off Joseph Marangoni (Marangoni) and Glenn Heyburn (Heyburn) in violation of Section 8(a)(3) and (1) of the Act I shall recommend that the Respondent be ordered to offer Marangoni and Heyburn immediate and full rein statement to their former positions or if those positions no longer exist to substantially equivalent jobs without prejudice to their seniority and other rights and privi leges and to make them whole for any loss of earnings as a result of the discrimination against them with back pay to be computed in the manner prescribed in F W Woolworth Co 90 NLRB 289 (1950), with interest to be computed in the manner prescribed in New Horizons for the Retarded 9 8 After Heyburn was laid off he asked former plant manager Speck for a letter of recommendation Speck as manager materials and operations at Respondent s Fairlawn location provided such a letter (dated Decem ber 11 1986) in which he stated inter alia that Heyburn was a strong asset and that [h]is experience in the assembly and shipping areas was a valuable resource of our Medina Assembly Plant (G C Exh 12 ) 8 In accordance with the Board s decision in New Horizons for the Re Larded 283 NLRB 1173 (1987) interest on and after January 1 1987 shall be computed at the short term Federal rate for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 Interest on amounts accrued prior to January 1 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp 231 NLRB 651 (1977) 170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I shall also recommend that any reference to Maran goni's or Heyburn s discriminatory layoffs be removed from their employment records On these findings of fact and conclusions of law and on the entire record, I issue the following recommend edio ORDER The Respondent, TLT Babcock, Inc, Medina, Ohio, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Laying off or otherwise discriminating against em ployees because they support or favor, or because Re spondent believes that they would support or favor, the unionization of its employees or because they engage in other concerted activities regarding terms and conditions of employment (b) In any like or related manner interfering with, re straining or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action necessary to effectuate the policies of the Act (a) Offer Joseph Marangoni and Glenn Heyburn imme diate and full reinstatement to their former jobs or, if those jobs no longer exist to substantially equivalent po sitions, without prejudice to their seniority or any other rights or privileges previously enjoyed, and make them whole for any loss of earnings and other benefits suffered as a result of the discrimination against them in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful discharges and notify the employees in writing that this has been done and that the discharges will not be used against them in any way (c) Preserve and on request, make available to the Board or its agents for examination and copying, all pay roll records social security payment records timecards personnel records and reports, and all other records nec essary to analyze the amount of backpay due under the terms of this Order (d) Post at its Medina Ohio plant facility copies of the attached notice marked Appendix i t Copies of the 10 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all pur poses i i 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 Nation al Labor Relations Board shall read Posted Pursuant to a Judgment of notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondents author ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecu tive days in conspicuous places including all places where notices to employees are customarily posted Rea sonable steps shall be taken by the Respondent to ensure that the notices are not altered defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re spondent has taken to comply the United States Court of Appeals Enforcing an Order of the National Labor Relations Board APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has or dered us to post and abide by this notice WE WILL NOT lay off or otherwise discriminate against employees because they support or favor, or because we believe they support or favor the unionization of our employees or because they engage in other concerted activities regarding terms and conditions of employment WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act WE WILL offer Joseph Marangoni and Glenn Heyburn immediate and full reinstatement to their former jobs or if those jobs no longer exist to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their discharges less any net interim earnings plus interest WE WILL notify each of them, that we have removed from our files any reference to his discharge and that the discharge will not be used against him in any way TLT BABCOCK, INC