Mark Industries, Inc.

MARK INDUSTRIES, INC. Mark Industries, Inc. and Teamsters Local 1110. Case 23-CA-10470 August 31, 1991 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On June 5, 1989, Administrative Law Judge Richard J. Linton 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, findings,' and conclusions, 2 to modify the remedy, and to adopt the recommended Order as modified.3 AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action to effectuate the policies of the Act. We shall order the Respondent to offer Joseph M. Castro full and immediate reinstatement to his former job or, if that job no longer exists, to a sub- stantially equivalent position, without prejudice to his seniority or any other rights or privileges previ- ' The Respondent has excepted to some of the judge's credibility find- ings 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. 2 We agree with the judge that the Respondent's discharge of employ- ee Joseph Castro violated Sec 8 (a)(3) and (1) of the Act under the prin- ciples set forth in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir . 1981), cert. denied 455 U.S. 989 (1982), approved in NLRB Y. Transportation Management Corp., 462 U.S 393 (1983) Thus, the judge found, inter alia, that the Respondent had knowledge of Castro's union activities, that the Respondent was opposed to unionization in general, and that the Respondent singled out Castro in particular for discriminato- ry treatment. The judge further found that of the four reasons the Re- spondent offered in support of the discharge , two of them actually re- ferred to conduct protected by the Act. These circumstances amply sup- port a finding that the General Counsel sustained his burden under Wright Line of establishing that Castro 's union activities were a motivat- ing factor in the Respondent's decision to discharge him. Turning to the Respondent's Wright Line burden, the judge found that it had failed to demonstrate that it would have discharged Castro for the remaining rea- sons even in the absence of his union activities. Inasmuch as we agree with the judge's Wright Line analysis, we find it unnecessary to rely on his discussion of Castro's discharge under the principles of NLRB v Burnup & Sims, 379 U S. 21 (1964). 3 We shall modify the judge's recommended Order to include the standard Board reinstatement remedy for Castro's discharge The parties did not fully litigate the issue of whether Castro would have been reas- signed or transferred to a substantially equivalent position when the Re- spondent's Selma, Texas facility closed in October 1986. We leave the resolution of this inquiry to the compliance stage of this proceeding See generally Dean General Contractors, 285 NLRB 573 (1987). 463 ously enjoyed, and make him whole for any loss of earnings and other benefits resulting from his dis- charge in the manner set forth in the remedy sec- tion of the judge's decision. The Respondent shall undertake our traditional make-whole remedy with the understanding that at compliance it may intro- duce evidence regarding the likelihood of Joseph M. Castro's reassignment or transfer to other facili- ties of the Respondent. We shall also order the Respondent to mail no- tices to all employees on its Selma, Texas payroll as of July 16, 1986 (the date of Castro's discharge), at their last known address. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Mark Industries, Inc., Selma, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraph 2(a). "(a) Offer Joseph M. Castro immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and make him whole for any loss of earnings and other bene- fits suffered as a result of the discrimination against him, in the manner set forth in the remedy section of the decision." 2. Substitute the attached notice for that of the administrative law judge. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to issue and abide by this notice and to mail copies of it to all employees on our payroll at our Selma, Texas plant as of July 16, 1986. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. 296 NLRB No. 64 464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT discharge or otherwise discrimi- nate against any of you for supporting Teamsters Local 1110 or any other union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL offer Joseph M . Castro immediate and full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or any other rights or privileges previously enjoyed and WE WILL make him whole for any loss of earnings and other benefits resulting from his July 16, 1986 dis- charge, less any net interim earnings , plus interest. WE WILL notify him 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. MARK INDUSTRIES, INC. Guadalupe Ruiz, Esq., for the General Counsel. Norman Jones (Jones, Jones & Jones), San Simeon, Cali- fornia, for the Respondent. DECISION STATEMENT OF THE CASE RICHARD J . LINTON, Administrative Law Judge. This is a discharge case. I find that Respondent Mark dis- charged Joseph M. Castro on July 16 , 1986, because of his activities on behalf of Teamsters Local 1110 at Mark's Selma (San Antonio), Texas plant. Because the Selma plant has closed, I do not order reinstatement, but I order Mark to make Castro whole, with interest. I presided at the de novo trial of this case on February 14, 1989, in San Antonio , Texas. On September 26, 1986, the General Counsel of the National Labor Relations Board, through the Regional Director of Region 23 of the Board, issued a complaint in this case against Mark Industries, Inc. (Respondent or Mark). The complaint is based on a charge filed August 13, 1986, against Mark by Teamsters Local 1110 (Teamsters or Union). In the complaint, as amended at the initial hearing, the General Counsel alleges that the Respondent violated Section 8(a)(3) and (1) of the Act by discharging Joseph M. Castro on July 16, 1986, because of his activities on behalf of Teamsters Local 1110. The complaint contains no allegations of independent violations of Section 8(a)(1) of the Act. By its answer Respondent Mark admits certain factual matters but denies violating the Act. Administrative Law Judge William A. Gershuny pre- sided at the original trial of this case on June 16, 1987, in San Antonio, Texas. Judge Gershuny issued his decision on September 3, 1987, dismissing the complaint , and the General Counsel filed exceptions with the Board. By its decision of November 21, 1988, not published in the Board's bound volumes, the Board remanded the case for additional findings and credibility resolutions. Because Judge Gershuny is no longer with the Agency, the Board remanded the case to the chief administrative law judge "to designate an administrative law judge to con- duct a new hearing and consider the issues de novo." I was so designated by order dated November 29, 1988. After conferring with the parties , I scheduled the new hearing for February 14, 1989. On the entire record, including my observation of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Respondent, I make the following FINDINGS OF FACT I. JURISDICTION A California corporation , Mark manufactures machin- ery. Joseph M. Castro worked at Respondent's Selma, Texas plant. Selma is a small town a few miles northeast of San Antonio, Texas. During the 12 months preceding the issuance of the complaint , Mark purchased goods and materials valued in excess of $50,000 that were received at its Selma, Texas plant direct from points located out- side Texas. Respondent admits, and I find, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Teamsters Local 1110 is a labor organization within the meaning of Sec- tion 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background 1. The record The transcript of Judge Gershuny's June 16, 1987 hearing in this case consists of 181 numbered pages in a single volume . For purposes of citations to that 1987 tes- timony, I shall refer to that transcript as volume 1 and indicate citations to it by volume and page. The tran- script of the February 14, 1989 de novo hearing before me consists of 100 numbered pages in a single volume. For citation purposes I shall refer to it as volume 2 with citations, or references to it by volume and page. The June 16, 1987 transcript of testimony was received in evidence at the February 14, 1989 de novo hearing before me as General Counsel's Exhibit 15 (2:31). Before me the parties elected to offer in evidence the transcript and exhibits from the original June 16, 1987 hearing. I received the record of the original hearing generally, based on the desires of the parties , with only one limitation. The single limitation, an obvious one and a limitation the parties expressly understood, is that I will not be able to assess the demeanor the witnesses dis- played before Judge Gershuny (2:5-6). The original ex- hibits were received at the new hearing with no change in the numbers. Very few new exhibits were offered at the de novo hearing before me: the briefs to Judge Ger- MARK INDUSTRIES, INC. shuny from the General Counsel (G.C. Exh. 13)1 and from Mark (G.C. Exh. 14), the original transcript (G.C. Exh. 15), and items (R. Exhs. 14a, 14b, 15) pertaining to Mark's pretrial effort to serve subpoenas duces tecum on Castro (2:30). I rejected Respondent's Exhibits 14a, 14b, and 15 (2:59-69). 2. Mark's plant at Selma, Texas Norman E. Jones represented Respondent Mark at both hearings (1:5; 2:4). Jones is a member of a labor re- lations firm, Jones, Jones & Jones, representing manage- ment (1:11). Although he earned a law degree, Jones is not a licensed attorney because he never took the bar ex- amination (1:11, 2:97). Jones also is a director of Mark (1:11; 2:96). Jones testified that currently Mark operates only in California, near Los Angeles (1:12; 2:92). Mark opened the Selma, Texas plant, the facility where Castro worked, in late 1985 and closed it in October 1986 (1:12; 2:92). Although Mark owns the Selma property, the fa- cility currently is leased and is for sale (1:12; 2 :91). Mark. employs a former supervisor of the Selma work force as a caretaker of the Selma property, but Mark has no other employees on the premises (2:93, 95). Mark manufactures hydraulic manlifts (2:96-97), and that is the product it manufactured at Selma when that plant was operating (1:34). Jones testified that a total of 70 bargaining unit employees worked at the Selma plant during its brief operation (1:23, 159). Presumably that number counts only the regular employees . Supervisor James L. Holliday testified that when Mark began to close it had 35 (regular) employees, plus 15 temporary employees, working on the shop floor (1:137). When he was hired on November 12, 1985, Castro testified, there were some 24 nonsupervisory workers, and that number increased (1:32-35). Castro was one of 15 to 18 welders who worked under Holliday's supervision (1:35, 137). Jones testified that the last remaining employees, about 20, left at the October 1986 closing (2:94). 3. Case 23-RC-5290 Castro testified that in early January 1986 some of the employees, unhappy over Mark's changing of benefits, appointed Castro to contact a union regarding represen- tation. Castro contacted George Eichler , the secretary- treasurer (G.C. Exh. la) of Teamsters Local 1110. Fol- lowing an initial meeting between Castro and Eichler, Eichler met with a group of 16 employees. At this Janu- ary 1986 meeting all 16 employees, including Castro, signed authorization cards for the Union . Castro thereaf- ter passed out additional cards and union literature (1:37- 40; 2:12-14). Apparently about early February 1986 the Union filed an election petition in Case 23-RC-5290, for on Febru- ary 18, 1986, the Regional Director for Region 232 ap- I I designate General Counsel exhibits as G C Exh and Respondent exhibits as R Exh. 2 In October 1987 the Board approved the General Counsel's plan to reorganize the Agency's field offices with Region 23 (Houston) being abolished and Houston and San Antonio becoming resident offices within 465 proved the standard agreement by the parties for a Board-conducted election in the following unit (G.C. Exh. 2): All full-time production, maintenance, quality con- trol, warehouse shipping, and janitorial employees employed by the Employer at its facilities located at 16435 I. H. 35 North, Selma, Texas, excluding all other employees, office clerical, guards, watch per- sons and supervisors as defined in the Act. The election was conducted on March 4, 1986, with Castro serving as the Union's observer (G.C. Exh. 2; 1:40). Of approximately 23 eligible voters, 21 cast ballots. The Union won by a vote of 12 to 9 (G.C. Exh. 2). Mark filed timely objections and a hearing on the objections was held on June 10, 12, and 13, 1986, in San Antonio, Texas, before Hearing Officer Javier R. Gonzalez. Gon- zalez issued his report on July 9, 1986, recommending to the Board that the election be set aside and a second election directed because Castro, as an agent of the Union, had threatened two employees with loss of their jobs if the Union won the election (G.C. Exh. 2). In its May 15, 1987 decision (G.C. Exh. 3), not pub- lished in the Board's bound volumes, the Board adopted the hearing officer's findings and recommendations . exceIt we find objectionable Castro's threats made to employees (including at least Burns and Butzirus) that, if the Petitioner won the election, nonmembers would not receive the same level of representation as members.2 8 [Case citations omitted .] We do not pass on the hearing offi- cer's finding objectionable Castro 's threat to have Robert Ttmke's and Mark Butzirus' jobs if the Petitioner won the election Castro did not testify before Gonzalez concerning either objection (G.C. Exh. 2 at 8, 13), although he did testify as to other matters. The Board directed that a second election be conducted whenever the Regional Di- rector deems it appropriate to do so (G.C. Exh. 3 at 2). As previously mentioned, and obviously unknown by the Board, Respondent's Selma plant had closed over 7 months earlier. We can better understand the next topic, Castro's ter- mination interview, if I summarize all the objections Hearing Officer Gonzalez ruled on. This is so because three of the four termination reasons refer to the objec- tions. The six objections filed by Mark are listed at pages 3-4 of the report by Gonzalez. Stated in brief, they allege that the Union and its agents: 1. Created a general atmosphere of fear. 2. Threatened employees that if they did not vote for the Union or support the Union they would lose their jobs. Region 16 at Fort Worth 126 LRR 107 (Oct. 19, 1987) The actual change occurred in 1988. 466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 3. Threatened employees that if they did not vote for or support the Union they would be subject to physical harm. 4. Threatened, coerced, and intimidated employ- ees by injecting religious bias and prejudice into the election campaign. 5. Threatened employees that if the Union won the election and they did not join the Union they would not be provided with representation by the Union in connection with grievances they had against the Employer. 6. (All of the above destroyed the laboratory conditions for a free election.) Gonzalez found Castro to be the Union's agent (G.C. Exh. 2 at 6), and the Board, at footnote 1 of its May 15, 1987 decision, expressly adopted that finding (G.C. Exh. 3). Gonzalez recommended that Objections 1 and 6 be overruled because "no other specific acts" referred to those objections (G.C. Exh. 2 at 13). Mark did not except to this finding (Board decision, G.C. Exh. 3, at fn. 1). Objection 3 is based on testimony by employee Barry Burns that 2 to 3 weeks before the election Castro, over the telephone, told Burns that 20 guys were going to kick Burns' ass if Burns did not vote for the Union. Castro testified he told Burns that 20 guys would be against Burns. In a prehearing affidavit Burns recited the version Castro gave before Gonzalez . At the objections hearing Burns said he viewed the two versions as the same. Gonzalez credited Castro, found that no threat oc- curred, and recommended that Objection 3 be overruled (G.C. Exh. 2 at 10-11). Respecting Objection 4, the religion issue, Hearing Of- ficer Gonzalez wrote as follows (G.C. Exh. 2 at 11-12): It was undisputed that employees Rafael Chapa and Phillip Swanson were recognized as being very religious. Castro testified that he called Chapa at his home. During the conversation he quoted from the bible a comment about if someone asks for your shirt you not only give your shirt but your coat as well. Castro also stated that , about two weeks before the election, he called Swanson and talked about the quote and told him to cast a blank ballot. He in- vited Swanson to see a religious movie, Jesus of Narzareth, at his home. Swanson declined the invi- tation. According to Swanson, Castro also men- tioned the same biblical quote at work and asked him to cast a blank ballot. Castro also stated that he had invited Jamie Mar- tinez, International Union of Electrical Workers Local Vice-President, an ordained minister, to speak at the meeting held on June 3. Martinez did attend the meeting and did speak. He handed out religious pamphlets. Swanson was the Employer observer in the elec- tion. Chapa did not vote. It is undisputed that Chapa's religious beliefs played a part in his deci- sion not to vote. The Employer asserts that the injection of reli- gion into the campaign is synonymous with the in- jection of racial prejudices. The Board in Sewell Manufacturing Company, 138 NLRB 66 (1962) es- tablished a test in setting aside elections based on appeals made to racial prejudice . The election is set aside when either party seeks to overemphasize or "exacerbate" racial feelings by irrelevant, inflamma- tory appeals. In the instant case the appeals did not emphasize religious bias but rather were appeals for employees to consider their own religion in making their decisions about the election . Under these cir- cumstances, the religious issue was not overempha- sized. I therefore recommend that the Employer's Ob- jection No. 4 be overruled. Earlier I wrote that Gonzalez had found merit to Ob- jection 2 and that the Board , sustaining Objection 5, ex- pressly did not pass on Objection 2. Objection 2, as we shall see, is one of the discharge reasons. Respecting Ob- jection 2, Gonzalez wrote (G.C. Exh. 2 at 6-8): This objection refers to an alleged threat by Castro concerning two employees. Barry Burns stated that on March 3, he attended a union meeting held at Ruben's, a local bar and restaurant. At this meeting Castro told him that if the Union was voted in, that he would have "Rocky" (Robert Timke) and Mark's (Butzirus) jobs. There was no conclusive evidence that anyone heard the comment. Burns stated that employees Il- defonzo Rodriguez, David Reyes and Ruben Marti- nez were present when the comment was made but did not think they heard it because Castro turned away when he said it. The next morning Burns told Timke about the threat. Timke confirmed that Burns told him on March 4, before voting that he and Mark would be eliminated from the company . He did state that Burns had not said who had made the statement. Butzirus stated that Jim Holliday, a supervisor, said that he heard from somebody else that if the Union won the vote that he and Timke would no longer have a job at Mark Industries. Holliday also told him not to worry about it. He said he was told this about 7:00 a.m. before voting . Butzirus asked Timke if it was true and Timke said yes. Timke did not remember talking to Butzirus about the state- ment. Timke stated that the threat did not affect the way he voted but at the time he voted he believed the threat might be true . Butzirus stated that he did not know if Castro or the union could take their jobs. Burns stated that he did not give any weight to Castro's statement and understood that Castro did not have the authority to fire employees, but also said that if the union came in Castro could have some pull. Castro did not testify concerning this allegation. It is concluded based on the uncontradicted testi- mony of Burns that Castro did make the threats. I also conclude that the threat was circulated to at MARK INDUSTRIES, INC. least two other eligible employees , Timke and But- zirus. [Thirteen-line discussion of legal standard omit- ted.] In the instant case the threat was circulated to at least three eligible voters . The Union won the election by a very slim margin. A change of only two votes could have affected the results of the election. I can only conclude that the threat that if the union won Castro would have Timke's and But- zirus' jobs would reasonably tend to interfere with the employees' free and uncoerced choice in this election. Accordingly, I recommend that Objection No. 2 be sustained. 4. Mark discharges Joseph M. Castro There is no dispute that on July 16, 1986 , Respondent summoned Castro to the office where Jones fired him in the presence of Personnel Manager Ken Euler . Jones tes- tified that the discharge decision was made a day or two earlier by Jones, Euler, and Plant Manager Dick Levan- dowski in consultation with Attorney Shelton E. Padgett (1:13-14). Because Euler had a cold and laryngitis on July 16, Jones conducted the discharge interview (1:13; 2:71). Jones and Castro testified about the discharge interview at both the original hearing, before Judge Ger- shuny, and at this remand hearing before me. Euler did not testify at either hearing . Before me Jones testified that Euler could not be located (2:72). At the discharge interview Jones gave Castro a copy of the July 9 report (G.C. Exh. 2) by Hearing Officer Gonzalez to read . After Castro read the report, Jones told Castro that "for those reasons you are terminated immediately." Jones added that Castro's conduct violated company policy as set forth in the Company's handbook (1:69; 2:22). There is a dispute over whether Jones or Euler gave, or even showed , Castro a list of four reasons for the termination. At the first hearing Jones claimed it to be so (1:16-17), although before me he testified the list was stapled to the back of July 9 report of Gonzalez (2:72). Castro denied being shown or receiving a copy of the list (1:70; 2:23, 40, 51). Castro also denies receiving, at this meeting, a copy of the July 9 report to keep (2:23, 40, 51). I credit Castro who, in general, testified before me with a persuasive demeanor. Even so, I find it possible that a slip of paper, with the four reasons , was stapled to the back of the report Castro read but that Castro did not see the stapled slip and Jones did not point it out. The important fact is that such a list apparently existed as is shown by subsequent events . On July 30, 1986, Castro filed a claim (G.C. Exh. 4) for unemployment compensation with the Texas Employment Commission (TEC).3 When Personnel Manager Euler, on behalf of Mark, filed Mark's August 20 protest of Castro' s unem- ployment benefits claim, he attached three items and stated (G.C. Exh. 4): 8 Because he found work immediately (apparently drawing no unem- ployment benefits), Castro could not recall having applied (1:91; 2:37-39). 467 Supporting documentation attached . Violation of work rules marked by check. The first item, on a separate piece of paper, is the list of reasons Jones referred to. It reads: Your termination is based upon the following acts of misconduct: 1) Threatening that employees would lose their jobs if the union was voted in. 2) Threatening employees with physical harm if the employees did not vote for the union. 3) Intimidating, coercing and harassing employ- ees by making appeals to their religious beliefs and prejudices in an attempt to persuade them to vote for the union. We are also concerned about your having operat- ed a motor vehicle on Company property without a valid current Texas driver's license. At the hearing before Judge Gershuny, Jones testified that the discharge meeting lasted less than 5 minutes, that Castro was not asked for his version, and that nei- ther Jones nor Euler went into the specifics of the listed items with Castro (1:20-22). The next item Euler attached (to his TEC protest) consists of pages 14 and 15 from Mark's employee hand- book (R. Exh. 9) for the Selma plant (2:73). The printed date appearing at the bottom of pages 14 and 15 reads: TX 11-1-85. Castro acknowledges that he signed his re- ceipt for a copy of the handbook earlier in his employ- ment (1:95). A set of 9 numbered work rules occupies the major portion of page 14. This set of 9 rules de- scribes incidents (such as theft or fighting) that may result in discharge without a warning . The preamble to the next group of rules reads: Infractions of the following rules will, depending on the seriousness of the offense and all pertinent facts and circumstances, result in disciplinary action, in- cluding a verbal warning, suspension, or discharge. This preamble is followed by 8 numbered rules. Rule 7, which has a check mark by it on this copy sent to the TEC, reads : "(7) Harassing, threatening, intimidating or coercing any other employee." The third item Euler attached consists of pages 17 and 20 from Respondent's California (1:89-90; 2:73, 80) hand- book (R. Exh. 8) for employees. Offense number 26 is checked. It bears a discharge penalty and reads: Offense Penalty 26. Threatening, D intimidating, fighting or performing a careless act which results or may result in personal injury to another employee or property damage. 468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Castro had never received a copy of the California book- let, although he had seen and read a copy (1:90-91). Before Judge Gershuny, Jones testified that Castro was terminated for the reasons set forth on the list at- tached to the protest (G.C. Exh. 4) Euler filed with the Texas Employment Commission (1:25). The first three discharge reasons on the list correspond generally to the objections as follows: Discharge Reason Objection 1 2 2 3 3 4 The fourth, and unnumbered, discharge reason (the driver's license item) has no counterpart in the objec- tions, although Jones testified that the topic , for some unexplained reason, was mentioned at the objections hearing (1:21). 5. The Board's order remanding In reaching his September 3, 1987 decision to dismiss the complaint, Judge Gershuny, without making his own credibility resolutions, relied on findings by Hearing Of- ficer Gonzalez that Castro had in fact threatened em- ployees. The Board found this to be reversible error in view of Castro's denial of the allegations at the hearing before Judge Gershuny (G.C. Exh . 1(m) at 3). Remand- ing for additional findings, the Board also directed that the administrative law judge should analyze the case under the following standards (Order at 4-6): In remanding the case, we note that in consider- ing whether alleged threats by Castro constitute grounds on which his discharge may be found to be lawful, the judge should consider first whether, even if made by Castro , the threats are such that the Respondent could lawfully discharge an em- ployee for them. In this regard, we note that, pursu- ant to such cases as Rio de Oro Uranium Mines, Inc., 120 NLRB 91, 94 (1958), threats that employees may be discharged are not necessarily objectionable conduct even if made by a union agent, unless there are circumstances under which the threatened em- ployee might reasonably believe that the union would have the power to carry out the threats. See Baja's Place, 268 NLRB 868 (1984). Under another line of cases, the Board has concluded that when an employer seeks to discharge or discipline an em- ployee for conduct occurring in the course of pro- tected activity , the Board will balance the Section 7 rights of the employee against the employer's inter- est in deterring the particular conduct to determine if the protection of the Act was removed by the employee's excesses in carrying out that activity. See, e.g., The Kroger Co. d/b/a Brunswick Food and Drug, 284 NLRB No. 78, slip op. 5-6 (June 30, 1987), enfd. mem. F.2d (11th Cir. Sept. 15, 1988), and cases there cited . Thus, even if Castro made the alleged threats, depending on the circumstances, they may not be a lawful ground for discharge. 3 Assuming the threats as understood by the Re- spondent would be a lawful ground for discharge, it is necessary-because they are alleged to have oc- curred in the course of organizing activity-to ana- lyze the incident under the rationale enunciated in NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). The Supreme Court there affirmed the Board's ruling that Section 8(a)(1) of the Act is violated de- spite the employer's good faith if it is shown that an employee was discharged for alleged misconduct while engaged in a protected activity , and that the employee was not in fact guilty of that misconduct. Once it has been established that an employee is engaged in union or protected activity, the burden shifts to the employer to demonstrate an honest belief that the employee was engaged in miscon- duct. Once an employer establishes an honest belief that the employee engaged in misconduct, the burden shifts back to the General Counsel to prove either that the employee did not in fact engage in the misconduct4 or that his misconduct was not se- rious enough to warrant discharge.5 The conduct that provides the fourth reason for Castro's discharge alleged in the termination slip (i.e., driving without a valid Texas driver's license) did not occur in the course of Castro's union activi- ty. Therefore, this purported reason for Castro's dis- charge should be analyzed under Wright Line prin- ciples. 8 In this connection , we note that the question whether or not threats of discharge would constitute objectionable conduct will not necessarily control the question whether the conduct could constitute a lawful ground for discharge . Thus, for example, if one employee assaulted another employee in an attempt to force him to wear a union pin, an employer might lawfully discharge him for the assault, even though there are circumstances under which the assault might not constitute grounds for setting aside the election- e.g., if the assaulter were not a union agent , there were hundreds of unit employees in the unit, and no one other than the victim knew of the assault 4 Magnolia Manor Nursing Home Inc, 284 NLRB No. 90 (June 30, 1987) (JD slip op at 11). 5 See Gem Urethane Corp., 284 NLRB No 122, slip op at 11 (July 27, 1987). 6 251 NLRB 1083 (1980), enfd 662 F.2d 899 (1st Cir 1981), cert. denied 455 U S. 989 ( 1982), approved in NLRB v. Transporta- tion Management Corp., 462 U.S. 393 ( 1983). 6. The trial on remand-and Mark's reasons for discharging Castro Earlier I described the items constituting the record. Testifying at the first trial of this case during the General Counsel's case-in-chief were Norman E. Jones (called, in effect, under Fed.R.Evid. 611(c) by the General Coun- sel), Castro, and James L. Holliday, Castro's former su- pervisor (called expressly under Fed.R .Evid. 611(c), at 1:139). During its case the Respondent called Jones4 and 4 Jones also represented the Respondent at the hearing. Although the transcript does not list Jones as testifying at this point , Judge Gershuny reminds Jones that he is under oath and on the witness stand before Jones launches into what clearly is testimony (1.157, 166) MARK INDUSTRIES, INC. (impliedly under Fed.R .Evid. 611(c)) Castro . There was no rebuttal stage. Before me the parties, as I have mentioned , introduced the record from Judge Gershuny's hearing. The General Counsel then called Castro (2:9) and rested (2:70). Re- spondent Mark then called Jones, Castro, recalled Jones, and rested (2:97-98). There was no rebuttal stage. The additional exhibits offered are not substantive items. With one possible exception , the testimony given before me, aside from its necessary value for credibility purposes, adds little of significance to the preexisting record. The possible exception occurs in the testimony of Jones. According to Jones, at the July 16, 1986 discharge interview Personnel Manager Ken Euler, "in his broken voice, said something about 'you've been warned."' (2:74) Continuing, Jones testified that he had looked through Castro's file some minutes earlier and had seen "several things about safety." Jones then concedes that he does not think he mentioned anything about safety in the discharge interview with Castro (2:74). Respecting this exception I emphasize the "possible" because it is not at all clear that Respondent Mark is now seeking to add safety violations to its list of reasons for terminating Castro. Jones never expressly stated that before me, nor does he assert it in his (Mark's) posthear- ing brief to me. It may be well to review how the matter of safety violations arose in this case. At the first trial the General Counsel introduced evi- dence of several incidents (including safety), not alleged in the complaint, solely as background to show knowl- edge, animus, and disparity (1:45-48, 128-129; G.C. Exh. 13 at 8 fn. 2, and 9-10). Respondent offered similar items, such as reprimands and safety matters, to counter the thrust of the General Counsel 's evidence. Citing these matters (specifically including "refusal to follow safety instruction") and exhibits in its July 31, 1987 brief to Judge Gershuny, Respondent Mark asserted (G.C. Exh. 14 at 2): However, Mr. Castro was not terminated for the above stated reasons but for the reasons as set forth by the National Board , in part, and other reasons the Corporation believed were for just cause. Ex- hibit of General Counsel #4. In its March 19, 1989 brief (G.C. Exh. 14) to me, Re- spondent, generally reproducing its brief to Judge Ger- shuny, omits the sentence just quoted . On the other hand, Mark cites rules pertaining to safety violations and refusal to do assigned work (a reference to an issue re- garding overtime) and simply characterizes these as mat- ters for which "Mr. Castro could have been terminated." (G.C. Exh. 14 at 3.) (Emphasis added.) In light of Respondent's failure to expressly add safety violations to the list of reasons for Castro's discharge, the clear and affirmative testimony of Jones that Mark gave Castro the reasons he was terminated (1:14), and Jones' testimony that Castro "was terminated for the reasons as stated on General Counsel's 4," (1:25), I find that the only purported reasons Respondent relied on in discharg- ing Joseph M. Castro were the four (quoted earlier) con- tained on the list Personnel Manager Euler attached to 469 Mark's protest (G.C. Exh. 4) of Castro's claim for unem- ployment compensation. In any event, I do not credit Jones because his demeanor before me was unfavorable. Thus, I do not believe Jones' testimony that Personnel Manager Euler told Castro, at the July 16 discharge meeting, that Castro had been warned . I find it was not said. Even if I were to find it logical or likely that any prior warnings to Castro over safety or other matters would have been relied on by Respondent in its decision to discharge Castro, an administrative law judge is not at liberty to supply, as a reason, that which the employer itself did not see fit to advance. Inland Steel Co., 257 NLRB 65, 67-68 (1981), enfd. mem. 681 F.2d 819 (7th Cir. 1982). The reasons Respondent Mark relied on were, I find, the four it advanced by listing on the sheet of paper it submitted with its protest to the Texas Employ- ment Commission. 7. Attachments to Respondent 's brief deemed stricken In making its argument against Castro's credibility the Respondent, by Norman E. Jones, attaches to its brief, "for the rejected file," Respondent's Exhibits 14(c) and 14(d). These documents are two envelopes addressed certified mail to Castro from Mark . With copies of return receipts attached , they are marked either "re- fused" or "return to sender." These documents relate to Mark's efforts to serve a subpoena (sent to separate ad- dresses) on Castro seeking the production of Castro's (Federal) income tax returns and W-2 forms for 1986 and 1987 (R. Exhs. 14a and 14b).5 Respondent's purpose in seeking the tax returns was to see whether Castro had reported cash income from moonlighting work.6 The as- serted relevance of this topic is that it would bear on Castro's credibility-his honesty/truthfulness, or lack thereof, depending on whether he reported the additional income (2:46).' Because the matter of whether outside income was re- ported on Federal income tax returns is collateral to credibility of the witnesses on the issues before me, I sus- tained the General Counsel's objection and placed the subpoenas, Respondent's Exhibits 14a and 14b, in the re- jected exhibits file (2 :46, 65-67). When Jones took the witness stand before me he placed his own credibility in issue. In fairness, therefore, if I were to inspect Castro's tax returns to ascertain whether he cheated on his income taxes, I also should inspect those of Jones. How- The subpoena also requested any notes or statements Castro had given the Union or the Board in this case. At the hearing Respondent was furnished Castro's Board affidavit of 8-25-86, apparently the same affidavit furnished at the original unfair labor practice trial (2:33, 1.76). Castro apparently furnished no statements to the Union and testified he had no documents pertaining to the case (2.64-65) a Castro testified that he did some contract welding (1:51, 92) and, in the summers, landscaping and mowing lawns (2.46) 7 Respondent initially sought to explore whether Castro was behind on his child support payments based on information Jones supposedly had that Castro was delinquent in them, but Respondent dropped that line of inquiry (2:26-28) As Jones expressed his purpose : "I'm looking for a character because we have to talk about this man, does he lie or (not), or tell the truth or tell what's true." (2:27) And: "he has said he didn't threaten people, yet the Board agent found that he did threaten people So there's conflict there." (2.27-28.) 470 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ever, Jones did not offer to produce his own income tax returns. Respondent's Exhibits 14(c) and 14(d), as earlier noted, are photocopies of two envelopes (with copies of return receipts attached) purporting to be those containing the two identical subpoenas (R. Exhs. 14a and 14b) which Respondent sought to serve on Castro. At the hearing Jones represented that the envelopes and return receipts (R. Exhs. 14c and 14d) were in a separate briefcase which Jones apparently did not receive from the airline on his arrival in San Antonio. He sought to hold the record open to place the items in the rejected exhibits file on the basis of Castro's (lack of) credibility concern- ing Castro's failure to accept or claim the letters (2:59- 61, 67-68). I ruled that I would not leave the record open for that purpose because Castro would not be able to see the items and give testimony about them .8 Because the case was on remand, and desiring to permit the parties full leeway to develop their positions, I stated I would enter- tain a motion for a continuance in order that we could reassemble to take the additional evidence . When Jones said he would send the envelopes to me I specifically told him I did not want them sent to me and that I would not hold the record open for that purpose. Jones declined the express opportunity to seek a continuance (2:68-69, 97-98). Respondent did not pause to file a motion reurging its position and seeking leave to submit the documents, nor does it move that the hearing be reopened in order that all parties have the opportunity to address the matter. In these circumstances the conduct of Jones in attaching photocopies of the envelopes and return receipts (R. Exh.s 14c and 14d) to Respondent 's brief is highly im- proper. The General Counsel apparently offered whatever knowledge the Government had concerning Castro's correct mailing address (2:60-61). Respondent apparently did not seek the General Counsel's assistance, if neces- sary, in obtaining personal service through the U.S. Mar- shal's office . Finally, Respondent apparently did not seek the assistance of the General Counsel immediately before the hearing to persuade Castro to accept service and to bring his tax returns to the hearing. In any event, the envelopes would prove nothing more than that Castro declined to accept a certified envelope which, it turns out, apparently contained a subpoena duces tecum seeking tax returns and statements. Castro's refusal to accept the certified letter from the company that fired him has no relevance to his credibility. As the envelopes do not bear a statement asserting "subpoena inside," it is immaterial that Castro testified , early in his cross-examination by Respondent, that he had not re- ceived a subpoena from Mark to bring certain documents (2:29). I shall consider the documents (R. Exh.s 14c and 14d) attached to Respondent 's brief as stricken , not part of the record, and not part of the rejected exhibits file. 8 Castro testified that one of the addresses (3311 Capitol Avenue) is his father's and that his father said he had refused to accept the certified letter (2:67). Similarly, Castro refused to accept the letter addressed to him at his own 8819 Five Palms address (2 30, 67) B. The Lawfulness of Discharge Grounds 1, 2, and 3 1. Introduction Pursuant to the Board's first instruction , I now turn to the circumstances surrounding Castro's alleged threats. Mark offered no evidence, either at the original trial or on remand, concerning the surrounding circumstances. Mark relies solely on the findings of Hearing Officer Gonzalez in arguing that the alleged threats constitute lawful grounds for discharge . In the Government's brief, the General Counsel does not address the circumstances under the first instruction topic of the remand. Supervisor Holliday briefly testified that on a Monday (date and timeframe not specified) three employees came to him and said Castro, over the telephone over the weekend, had threatened to kick their asses. Holliday tes- tified he had heard rumors others were going to do the same to Castro . Holliday told his two leadmen that he did not want any fights. He told Castro that tempers were getting overheated and he would not have anyone making threats. Castro denied making any threats and he said he would tell the three he made none . Holliday re- ceived no reports afterwards from his two leadmen that any employee was getting "totally out of hand" (1:145- 148). The only factual description concerning the circum- stances is that which appears in the Gonzalez report. Earlier I quoted in full from that report concerning Ob- jection 2 (discharge ground 1), the threat expressed to Barry Burns that he, Castro, would "have the jobs" of Robert "Rocky" Timke and Mark Butzirus if the Union were voted in. I also quoted in full from the report con- cerning Objection 4, the religion issue (discharge ground 3). That leaves discharge ground 2, the threat of physical harm-Objection 3. Respecting Objection 3, Gonzalez wrote (G.C. Exh. 2 at 9-10): Objection No. 3 refers to an alleged threat made by Castro to Burns of physical harm. Burns stated that two to three weeks before the election he got a message that Castro had called his home. He was in Ildefonzo Rodriguez' apartment drinking. Burns then called Castro at Ruben's Bar where Castro was also drinking . Burns could not recall what was said during the telephone conversa- tion except that Castro said "twenty guys were going to kick my [Burn's] ass if I didn't vote for the Union," after which Burns hung up. Castro stated that he had told Burns that twenty guys were going to be against you. Rodriguez stated that he was trying to listen on the phone when Burns was talking to Castro and that he did not hear any threat . He said that after the call Burns said something about some people coming after them. The next day Burns told Lex Lynch and Timke about the alleged threat near a break table and others may have heard . Timke confirmed that Burns told him Castro called him the night before and said that twenty men were going to kick his ass MARK INDUSTRIES, INC. if he wouldn't vote for the Union. Timke said Jim Holliday, Lynch and Butzirus were at the table. Butzirus also confirmed the conversation at the table. Neither Lynch nor Holliday testified. Burns stated that during that day or the next at work, Castro called him over and told him "you can't be saying that kind of shit, you are going to get me in trouble." Burns told him yes you did [say that] and Castro said, No. Castro stated that Holliday told him that he had threatened Burns. Castro denied it. Castro then talked to Burns about it. Burns told him that Castro had said on the phone that if he didn't join the Union there were going to be twenty guys out there to kick his ass. Castro said he didn't. Castro told him that he had said that twenty guys were going to be against him. Rodriguez stated that he saw Castro and Burns talking but did not hear what they were saying. Timke also saw Castro talking to Burns apparently, according to Timke, trying to apologize. Burns stated at the hearing that he had changed his statement in an affidavit to the Board. He had first stated that Castro had told him that twenty guys would kick his ass. In the Board affidavit he stated that Castro only told him that twenty guys would be against him. During his testimony at the hearing he stated that both the earlier statement and the Board Affidavit were correct. He then stated that both statements meant the same thing to him. As a result of Burns' contradictions of the event, I credit Castro. I have found that the alleged threat made by Castro to Burns did not occur. Castro merely told Burns that if he did not support the Union that twenty guys would be against him. That statement is not a threat of bodily or physical harm. It was constructively disavowed when Castro told Burns that he had not made the alleged threat . Rodriguez and Timke saw Castro talk to Burns, apparently when Castro denied that he had made the threat. Castro also told Holliday and Rodriguez that he had not made the threat. 2. Discussion a. Circumstances Assuming that Castro made the threats attributed to him by employee Barry Burns in Objections 2 (to "get" the jobs of employees Timke and Butzirus) and 3 (20 guys would kick Burns' ass if he did not vote for the Union), the circumstances do not appear to neutralize the statements. Respecting the jobs threat, Castro never ac- knowledged the threat . He denied making it . A denial does not provide the reassurance that would flow from a confession, an acknowledgement it was wrong, and a promise of no future threats or attempts to affect the jobs of employees. Castro's status as an agent of the Union caused employees to suspect he possibly would adversely affect their jobs through an established bargaining agent. Thus, I find that the circumstances surrounding the threats would not, as a matter of law, prevent Respond- 471 ent Mark from discharging Castro for the threats, if made. Hearing Officer Gonzalez found that the physical harm threat was not made. Before leaving the subject of the threats described by employee Burns, I should note that Burns did not testify before me . The only weight that can be given to his de- scription, therefore, is the very limited weight that can be given to the findings of Hearing Officer Gonzalez. Respecting the religion issue, I find Castro's alleged conduct to be protected. Again, no witness testified before me about the subject. b. Balancing the interests Respecting the matter of balancing the Section 7 rights of Castro against Mark's interest in deterring the conduct to determine if the protection of the Act was removed by the employee's excesses in carrying out the activity (order remanding at 4), the answers seem unclear. The (assumed) job-loss threat occurred away from Mark's premises. On the other hand , the company rules against threats9 are not expressly restricted to occurrences at or on Respondent's premises, property, or functions. The parties did not focus on this question. The only evidence concerning it is an indirect reference by Super- visor Holliday in testifying before Judge Gershuny about an incident one day at the plant between a nonemployee (an employee of a caterer) and welder James Owens. Claiming Owens owed him money, a claim Owens denied, the caterer employee pushed Owens against the wall. Owens did not fight back and tried to back away. Holliday testified Owens was not disciplined for fighting on company property because Owens was passive in the incident (1:139-140, 150). Despite this description, the evidence is insufficient to determine company policy on the issue. Objectively, it would seem that Respondent Mark might well interpret its rules against threats to apply when a threat, although uttered away from compa- ny premises, property, or functions, relates to the work relationship. On that objective basis, Mark would have a superior interest in deterring threats such as job loss. That brings us to consider the second instructed topic. C. The Alleged Threats 1. The Burnup & Sims analysis a. Introduction As the Board wrote in its remand order, quoted earli- er, once it has been established that an employee is en- gaged in union or protected activity, t 0 the burden shifts to the employer to demonstrate it held an honest belief that the employee was engaged in misconduct when it disciplines the employee for that misconduct . If the em- ployer so demonstrates, the burden shifts back to the 9 Rule 7 from R Exh 9 at 15 (the Texas rules) and rule 26 from R Exh 8 at 20 (the California rules), quoted earlier in conjunction with Castro's discharge and Mark's protest of his claim for unemployment compensation. 10 It is undisputed that the alleged threats , if made, occurred in the course of the union organizing and were directly associated with Castro's efforts to persuade employees to support the Union 472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD General Counsel to prove either that the employee did not in fact engage in the misconduct or that his miscon- duct was not serious enough to warrant discharge (remand order at 5). b. The issue of Mark's "honest belief' Mark does not directly address the "honest belief" question in its posthearing brief to me. As with its brief to Judge Gershuny, Respondent again relies on the find- ings in the Gonzalez report, recites rules for which Castro "could have been terminated," and attacks Cas- tro's credibility by impliedly arguing that the General Counsel failed to prove that Castro did not utter the threats or that Castro's conduct was not serious enough to warrant his discharge. As Jones admits, at the discharge interview Mark did not ask Castro for his version of the facts (1:22). Howev- er, Castro was present and testified regarding some of the matters before Hearing Officer Gonzalez but, as the Gonzalez report reflects, Castro did not testify about the job loss threat (G.C. Exh. 2 at 8). Castro disputed the "kick ass" threat (Objection 3) and , as earlier noted, Hearing Officer Gonzalez found that Castro had simply told Barry Burns that 20 guys would be against Burns if he did not vote for the Union. Even so, that statement itself is apparently the "threat" Mark relied on by includ- ing the essential element of Objection 3 (threat of physi- cal harm) as reason 2 (threat of physical harm) on the discharge list. In the absence of testimony or other evi- dence by Mark indicating that Mark relied on the allega- tion rather than the statement as found by Hearing Offi- cer Gonzalez, t t I find that Respondent's listed reason 2 refers to the latter rather than the former. Indeed, recall that at the discharge interview Jones expressly relied on the report of Hearing Officer Gonzalez. Respecting listed reason 2, I find Mark held an honest belief Castro made the "20 guys will be against you" statement. Castro admits the remark and it is so found in the Gonzalez report . Is the remark misconduct? I find it is not. If it were, employees would jeopardize their jobs merely by expressing opposition to employees holding different views. Accordingly, I find that Mark's listed reason 2 was not available to be used by Mark as a reason for discharging Castro because the reason actually refers to protected conduct. Mark's "honest belief" that Castro made the remark is an element of the Burnup & Sims rationale rather than a step in motive analysis . Indeed, if I were analyzing Mark's motive, I would find that Mark seized on this ground, as the others, as a pretext to mask its true reason for discharging Castro-his protected activities in sup- port of the Union. For reasons similar to those respecting ground 2, I find listed reason 3 (the religion issue) to be unavailable to Mark notwithstanding Mark's "honest belief" Castro made appeals to the religious beliefs of employees Rafael Chapa and Phillip Swanson . The appeals by Castro were rather subtle and not at all inflammatory. Once again, this conduct by Castro was merely protected activity " Thus, the inquiry necessarily must focus on the remark as found by Gonzalez rather than on the objection as filed by Mark. available to either side in an election campaign . Accord- ingly, I find that listed reason 3 was unavailable to Mark as a matter of law. Turning now to listed reason 1, the threat of job loss, I find Respondent Mark did have an honest belief that Castro in fact made the job loss threat. Although the Union was represented by counsel at the objections hear- ing (1:22-23), Castro was not asked about this allegation. Even though the evidence showed that at the plant Castro denied making the threat , Hearing Officer Gonza- lez found that Castro did make the threat. In making my finding Mark held an honest belief Castro had made the threat, I recognize that, as to evi- dence of the threat, Respondent is relying solely on the evidence presented to Hearing Officer Gonzalez. Former employee Barry Burns, for example, did not testify before me. As the Board notes, however, a hearing offi- cer's findings, although not binding on an administrative law judge, are entitled to some weight. (Remand order at 3, fn. 2.) c. The General Counsel failed to prove that Castro did not make the job loss threat The next question is whether the General Counsel proved that Castro did not make the threat . Before Judge Gershuny, Castro denied threatening any employee either with loss of his job if the Union was voted in or with physical harm (1:70). He also denied "harassing any employees about their religious beliefs." (1:70) Before me Castro testified he never told employees that they would lose their jobs if the Union were voted in, never told employees that they would be physically harmed if the employees did not vote for the Union, never appealed to the religious beliefs or prejudices of employees in an attempt to persuade them to vote for the Union, and did not threaten Barry Burns (2:23-24, 48). If I believed Castro, specifically as to the job loss threat, I would find that sufficient to conclude that the General Counsel had met the Government's burden of proving the misconduct did not occur. However, on this aspect of the case I do not believe Castro. Aside from Castro's demeanor being unfavorable re- specting his denial , I note the following which reflects adversely on his credibility . When Mark's representative, Norman E. Jones, began Respondent 's cross-examination of Castro, Jones asked whether Castro recently had con- versed with the former Mrs. Castro about a subpoena Mark had sent to her. "No," answered Castro (2:25). It later developed that Castro indeed had conversed to a limited extent with his former wife about the subpoena. Thus, Castro testified that he answered that way because when his former wife showed him the subpoena and asked him what to do he simply told her, "I don't know," and nothing more (2:25). I find the foregoing subpoena episode relevant as to credibility for this reason. It demonstrates that Castro tends to shave meanings very finely rather than squarely addressing the substance of an inquiry . Castro struck me as disingenuous on this . I do not trust or credit his denial of the job loss threat . Accordingly, I find that the Gen- MARK INDUSTRIES, INC. eral Counsel failed to show that Castro did not make the threat. d. The seriousness issue (1) Introduction The last question in this series is whether the General Counsel demonstrated that Castro's misconduct in making the job loss threat was not serious enough to warrant discharge. (Counsel do not address this issue in their posthearing briefs.) First, not every act of miscon- duct in the course of protected activities automatically warrants discipline. Electrical Workers IBEW Local 1106 (General Telephone Co.), 251 NLRB 737, 739, 740 (1980), enfd. mem. 672 F.2d 895 (D.C. Cir. 1981). The miscon- duct must be sufficiently serious. Gem Urethane Corp., 284 NLRB 1349 at 1352 (1987). The test of seriousness is that adopted by the Board in Clear Pine Moldings, 268 NLRB 1044, 1045 (1984), enfd. mem. 765 F.2d 148 (9th Cir. 1985): "whether the misconduct is such that, under the circumstances existing, it may reasonably tend to coerce or intimidate employees in the exercise of rights protected under the Act." 268 NLRB at 1046. However, an employer is not free to apply a double standard. It may not tolerate behavior by employees who refrain from union activities that is at least as serious, or more serious than, the misconduct of the union support- ers. Aztec Bus Lines, 289 NLRB 1021 at 1024 (1988). As the Board recently wrote in Champ Corp., 291 NLRB 803 at 806 (1988): Even in cases in which a striker has actually en- gaged in misconduct and the employer denies rein- statement on the grounds of that misconduct, an employer may still violate Section 8(a)(3) and (1) of the Act if that denial represents disparate treatment of strikers as compared with nonstrikers or replace- ments, i.e., if it is denying reinstatement to strikers for conduct that is substantially the same as conduct that it has tolerated on the part of employees who have refrained from striking. At all times the burden of proving discrimination is that of the General Counsel . Gem Urethane, id. at 1352. Also presumably a case of pretext may exist . The sugges- tion is mentioned by the administrative law judge in Lou- isiana-Pacific Corp., 282 NLRB 1303, 1308 fn. 15 (1987). That raises the question of whether it may become ap- propriate to apply the Wright Line12 analysis to Castro's job loss threat. Suppose, for discussion, the General Counsel estab- lished prima facie that Respondent Mark was motivated by Castro's union activities in deciding to fire Castro. (The General Counsel's complaint so alleges, and the complaint alleges a violation of Section 8(a)(3) and (1) of the Act. The General Counsel argues that Respondent seized on the threats as nothing more than a pretext to rid itself of the Union's leading supporter.) That would satisfy the General Counsel's prima facie burden of prov- 12 251 NLRB 1083 (1980), enfd . 662 F.2d 899 (1st Cir. 1981), approved in NLRB Y Transportation Management Corp., 462 U.S 393 (1983) 473 ing discrimination. Does the analysis stop there because the job loss threat was related to Castro's protected or- ganizing activities and therefore only the Burnup & Sims standard applies? Is Mark able to show, if it can, that it would have fired Castro even absent his union activities? (The affirmative defense under Wright Line.) Is the af- firmative defense concept, in such circumstances, bor- rowed from the Wright Line analysis and applied in the Burnup & Sims analysis? If pretext is a material argu- ment, then surely the analysis must encompass the ques- tion of whether Respondent could have fired Castro even absent his union activities. (2) Disparity Although the General Counsel argues disparity, I find none. James L. Holliday, Castro's supervisor, also super- vised welder James Owens. Holliday described Owens as a young man with a short temper. Around the spring of 198613 leadman Mark Butzirus came to Holliday and, ap- parently, reported that Owens had threatened to kick Butzirus' ass. Holliday orally reprimanded Owens for this. This was not the first threat by Owens, for Holliday testified Owens was not given a reprimand despite re- ports of at least two or three such threats to employees (1:141-144). Respondent's record of written warnings issued confirms this inasmuch as Owens is not listed (R. Exh. 13). However, Holliday personally handled the "kick ass" allegation against Castro in a similar manner . Thus, he told Castro he did not want any threats being made, and he instructed his two lead persons to seek to put a damper on emotions (1:147-148). Bypassing Holliday, Respondent included this allegation as item 2 on its list of reasons for discharging Castro even though Hearing Officer Gonzalez found that Castro's statement was simply "20 guys were going to be against you." More- over, the General Counsel failed to prove that Owens was not an open supporter of the Union or that Mark otherwise believed Owens to be neutral or opposed to the Union. Accordingly, no disparity is shown. On the other hand, Respondent's bypassing of Supervisor Holli- day tends to show an unlawful motive. (3) Conclusion Earlier I found that the nature of the job loss threat was serious enough to justify , from an objective stand- point, discipline up to discharge. Finding no disparity treatment by Mark, and viewing Castro's job loss threat as serious, I find that the General Counsel has failed to carry the Government's burden under Burnup & Sims. 2. Analysis of Mark's motive a. Introduction I turn now to the General Counsel 's remaining conten- tion-that Castro's discharge was pretextual. Mark, as I have found, honestly believed Castro made the job loss threat, and the General Counsel failed to 13 Holliday could not specify the timeframe other than as possibly before or after the election of March 3, 1986 (1.141) 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD prove that Castro did not make the threat. The General Counsel argues that the reasons advanced by Respondent are pretextual (Br. at 6). Thus, the General Counsel also relies here on its 8(a)(3) allegation alleging a discrimina- tory motive. 14 I address the motivation issue with the usual analysis called for by Wright Line, 251 NLRB 1083 (1980). b. The General Counsel's prima facie case The record abounds with evidence respecting Castro's extensive activities as the leading union adherent as well as of Respondent's knowledge concerning Castro's prominent role. Indeed, as James L. Holliday, Castro's supervisor, testified at the first trial, the supervisors knew Castro was active with the Union (1:134). Although there is no evidence of antiunion animus di- rected specifically at Castro (and no allegations of inde- pendent violations of Sec. 8(a)(1) of the Act), Respond- ent Mark made it clear to employees that it opposed unionization of its Selma plant . Thus, about 3 weeks before the March 4, 1986 election Plant Manager Dick Levandowski, in Holliday's presence, told Castro that Mark did not want a union (1:41-45). The testimony was not disputed . Such general opposition has been held to constitute animus. Holo-Krome Co., 293 NLRB 594, 595 fn. 6 (1989). At a group meeting of assembled employees the day before the election Ralph L. Thompson, then the person- nel manager, and Levandowski spoke against unioniza- tion. Castro stood and spoke out for the Union. Thomp- son responded with some more remarks, including a statement that if the Union were voted in that it would institute a whole new game and with wages starting at (the Federal) minimum. Castro said Thompson was wrong and was lying to the employees, and that bargain- ing would start with employees' wage rates being at their current level (1:46-48; 2:18-19). Castro's testimony stands unrebutted. Before the election Castro had never been reprimand- ed (1:49). Not long after the election Personnel Manager Thompson personally undertook to issue reprimands to Castro. The first, dated April 21, 1986 (G.C. Exh. 5), was for allegedly refusing to work overtime the previous Friday, April 18 (1:50). Actually Castro had merely de- clined Supervisor Holliday's request to work overtime on the express understanding that Holliday would turn in his. overtime list showing Castro unavailable . Holliday expressly assured Castro he would not get in trouble (1:51-52, 120, 131). Before the election Castro similarly had declined to work overtime, in the absence of an order to do so, and had not been reprimanded (1:127- 128, 130-131). On April 2, 1986, Thompson personally issued Castro a written reprimand for "refusing" to work 14 As the Board notes in its remand order at 5, the Supreme Court's decision in Burnup & Sims, 379 U. S. 21 (1964), turned on the Court's in- terpretation and application of Sec . 8(a)(1) of the Act. The complaint also alleges that Castro's July 16, 1986 discharge violated Sec . 8(a)(3) of the Act. overtime. When Castro, later that day, complained to Holliday about it, Holliday said he knew nothing about the reprimand (1:52-53). A week later Thompson issued Castro another written warning, dated April 28 (G.C. Exh. 6). This one was for failure on April 24 to wear safety glasses while grinding (1:57). Castro testified at the original hearing concerning why he was not wearing safety glasses on that occasion. His explanation is based on the idea that the particular material would not flake or chip. The relevant point, however, is that Respondent ignored others it observed doing this. When Castro pointed this out to Holliday and asked why he was being picked on, Holliday did not answer (1:124-127). I find that Respondent , through Per- sonnel Manager Thompson, bypassed Castro's supervisor in order to implement directly a program to single out Castro for discriminatory treatment . Respondent's unan- nounced object, I find, was to lay the procedural groundwork, in the form of written warnings (even over- riding, in the overtime instance, Supervisor Holliday's as- surance to Castro that there would be no problem), for discharging Castro. Mark's reason for its discrimination against Castro was, I find, to retaliate against him for Re- spondent's surprise loss in the election, ' s and to elimi- nate his presence in the event Mark could have the elec- tion set aside and a second election directed. I shall postpone discussion of whether Respondent car- ried its burden of proving, as its affirmative defense, that it would have fired Castro even absent his union activi- ties, until I discuss Mark's listed reason 4-the driver's li- cense issue. D. The Driver's License Issue 1. Facts Mark's fourth and unnumbered item , expressed as a concern rather than as a numbered reason, reads: We are also concerned about your having operated a motor vehicle on Company property without a valid current Texas drivers license. First, neither of the rules checked by Personnel Man- ager Euler in his August 20, 1986 protest submission (G.C. Exh. 4) to the Texas Employment Commission re- quires an employee to have a valid Texas driver's license if he drives his private car onto Mark's property. Nor is there any specific reference in all of Respondent's Cali- fornia rules (R. Exh. 8) or its Texas work rules (R. Exh. 9). Broadly read, perhaps some other rule could be inter- preted to apply, but Respondent has not indicated any. Second, Mark's safety rules (R. Exh. 7) pertain, in this connection, only to company vehicles, and even then merely provide: "If you are authorized to operate plant vehicles, abide by all traffic regulations." 16 Before the election Mark was confident a majority of the employees would vote against the Union. Supervisor Holliday so testified (1:35). MARK INDUSTRIES, INC. 475 Third, the driver's license topic somehow arose (the context is not adequately explained in the record) at the June 1986 objections hearing (1:21, Jones; 1 :113, Castro). Jones testified that lack of a driver's license "causes problems" (unspecified) respecting insurance. In the next breath, Jones conceded that Castro was not required to operate a vehicle as part of his welding job (1:21). Castro confirms he was not so required (1:70; 2:24). At no point, either before Judge Gershuny or before me, did Jones flatly say that Castro was fired, in part, because he did not have a valid Texas driver's license. Fourth, although Castro concedes he did not have a valid license during that timeframe (1:113, 115; 2:24), at no time did anyone at Mark tell him he should or must obtain one (1:71; 114-115; 2:24-25). Fifth, Respondent does not rely on this ground either in its brief to Judge Gershuny (G.C. Exh. 14) or in its posthearing brief to me. 2. The General Counsel's prima facie case As the Board directed in its remand order of 6 (G.C. Exh. lm), the driver's license issue must be analyzed under the principles of Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), approved in NLRB v. Transportation Management Corp., 462 U.S. 393 (1983). I already have described Respondent's conceded knowledge of Castro's active and open support of the Union, Respondent's opposition to unionization general- ly, and its retaliation against Castro beginning not long after the March 1986 election . Those findings apply equally here. Respondent never at any point expressly describes its "concern" over Castro's lack of a valid driver's license as one reason for which it specifically discharged Castro. To the extent it may contend it did so, I find the reason nothing more than a makeweight. More than that, it con- stitutes an overreaching . This stretching out by Respond- ent to grasp for any basis, however illogical, to justify Castro's discharge merely reflects that Respondent had a different motive-an unlawful one-for discharging Castro. I so find, and I therefore find that the driver's license "concern" is a tainted pretext which Mark includ- ed on the list in an attempt to buttress its unlawful motive of eliminating from its midst the Union's pivotal leader-Joseph M. Castro. Thus, I find that the General Counsel has established prima facie that Castro's union activities were a motivat- ing reason for Respondent's decision to discharge him. The remaining question is whether Respondent carried its affirmative burden of demonstrating it would have fired Castro even in the absence of his union activities. E. Respondent 's Affirmative Defense 1. The legal standard Under Wright Line, once the General Counsel estab- lishes a prima facie case, the burden shifts to the Em- ployer to demonstrate (that is, to persuade as to the af- firmative defense) that it would have taken the same action even in the absence of the protected conduct. 251 NLRB at 1089. I find that Respondent Mark failed to carry its burden. 2. The job loss threat First, Jones never testified , and there is no direct evi- dence indicating, that Respondent Mark would have fired Castro as to one of the threat allegations rather than in relying-as it does-on all three. Yet the only threat allegation remaining intact is the job loss threat. The preamble to Mark's second group of rules allows discretion in the nature of the discipline to be imposed for "harassing, intimidating, threatening or coercing" in violation of rule 7 (R. Exh. 9 at 14, 15). Supervisor Hol- liday described Respondent's discipline policy as being, in effect, one progressing from as many as three oral warnings before even a written warning issued , depend- ing on the circumstances (1:144). Absent Respondent's retaliation campaign of warnings and other actions against Castro beginning after the election, Castro's record would have been free of reprimands-as it was before the election. In those circumstances it is not at all certain that Mark, in the absence of Castro's union ac- tivities, would have fired him, rather than imposing some lesser discipline, for his job loss threat. While serious, a job loss threat is less serious than, say, a threat of vio- lence or physical harm. Second, in the absence of Respondent 's expressly as- serting that it would have discharged Castro over the job loss threat alone, I am not at liberty to find that it would have done so even if I believed Mark would have done so. Hicks Oils & Hicksgas, 293 NLRB 84 (1989). Indeed, I certainly do not believe it would have done so absent Castro's protected activities. 16 I find that Re- spondent failed to carry its burden here. There is no evidence and no indication to support a finding that Mark would have fired Castro, absent his protected activities , if the threat of job loss had related to some personal dispute with employee Barry Burns rather than to a union organizing campaign. 3. No driver's license Similarly, there is no evidence Mark would have fired Castro solely because of his lack of a current driver's li- cense absent Castro's union activities . The points made in discussing Respondent's motive on this topic are equally persuasive here. Thus, as a welder Castro had no job re- quirement of holding a valid Texas driver's license. As for Jones' expression of concern about insurance, Jones immediately admitted that Mark does not purchase insur- ance for its employees' private motor vehicles (1:21). This is not to say that an employer could not have such a concern or impose license and insurance require- ments on its employees as a condition of their being able to park their vehicles on company property. But there is no evidence Mark had ever expressed such a concern to 16 The analysis here is complicated by the fact the threat is tied to the union activities I must assume the threat in the framework of a personal dispute between Castro and employee Barry Burns and then ask whether Mark would have fired Castro because of a job loss threat uttered to Burns as part of a personal dispute 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD its employees here. Respondent has failed to carry its burden of showing that it would have fired Castro for his lack of a valid driver's license even in the absence of his union activities. CONCLUSIONS OF LAW 1. Respondent Mark Industries, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by discharging Joseph M. Castro on July 16, 1986. 4. The unfair labor practices found affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY The Respondent having discriminatorily discharged employee Joseph M. Castro on July 16, 1986, it ordinari- ly would have to offer him reinstatement as well as make him whole. Because Mark has closed its Selma, Texas operation, neither a notice posting nor a reinstatement order is appropriate . There is no evidence Mark plans to reopen its Texas operation, nor is there any evidence Mark offered its Texas employees an opportunity to transfer to its California operation or to be placed on a preferential hiring list there . Other than requesting a standard order requiring reinstatement, backpay, and posting of notices (Br. at 6), the General Counsel has not proposed any special remedial order. I shall order Respondent Mark to mail notices to all employees on its Selma, Texas payroll as of July 16, 1986 (the date of Castro's discharge), at their last known ad- dress. I shall also order Respondent to make Joseph M. Castro whole for any loss of earnings and other benefits, computed on a quarterly basis from date of discharge to the date Castro would have been laid off (as determined at the compliance stage) in Mark's October 1986 closing of its Selma plant, less any net interim earnings, as pre- scribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retard- ed, 283 NLRB 1173 (1987).17 17 Under New Horizons, interest is 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 accrued before January 1, 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977). On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed18 ORDER The Respondent, Mark Industries, Inc., Selma, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Discharging or otherwise discriminating against any employee for supporting Teamsters Local 1110 or any other union. (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) Make Joseph M. Castro whole for any loss of earn- ings and other benefits suffered as a result of the discrim- ination against him in the manner set forth in the remedy section of the decision. (b) Remove from its files any reference to the unlawful discharge and notify Castro in writing that this has been done and that the discharge will not be used against him 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) Mail signed and dated copies of the attached notice marked "Appendix" to all its Selma, Texas employees of record as of July 16, 1986, to their last known address.19 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Re- spondent's authorized representative, shall be mailed by the Respondent immediately on receipt. (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. 18 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. 1s 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 the United States Court of Appeals Enforcing an Order of the National Labor Relations Board."