Dougherty Lumber Co.

DOUGHERTY LUMBER CO 295 Dougherty Lumber Company and Michael F. Bruce. Case 8-CA-19220 July 31, 1990 DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND OVIATT On December 29, 1989, Administrative Law Judge William A Pope II issued the attached deci- sion The Respondent filed exceptions and a sup- porting 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 bnef and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Dougherty Lumber Company, Cleve- 1 The judge found that the Respondent's general manager unlawfully threatened to discontinue offering Charging Party Michael F Bruce pro- fessional football tickets and to withhold financing of a home for Bruce's mother In agreeing with the judge that these threats violated Sec 8(a)(1) of the Act, we note that they were made by the Respondent's general manager in his office and in his capacity as general manager, and were made in conjunction with an unlawful threat to cease offering Bruce overtime work We also find that on May 23, 1986, Charging Party Bruce engaged in concerted activity under the standard set forth in Meyers Industries, 281 NLRB 882 (1986), enfd sub nom Frill v NLRB, 835 F 2d 1481 (DC Cir 1987), cert denied 487 U S 1205 (1988), based particularly on the accompaniment of Bruce by fellow employee and Union Steward Ko- tech when Bruce made the request to management for the remainder of the day off We find further that Bruce's remark in the course of the latter request, to the effect that he did not intend to work that day, the next, or maybe never, was not so flagrant or egregious as to remove Bruce's request from the protection of the Act Therefore, assuming arguendo that the discharge of Bruce was based on that remark, as the Respondent as modi- fied contends, the discharge was nevertheless unlawful as that remark did not cause Bruce to lose the protection of the Act Postal Service, 250 NLRB 4 fn 1 (1980) Accordingly, we agree with the judge that the Re- spondent discharged Bruce in violation of Sec 8(a)(1) of the Act Accord Consumers Power Co, 282 NLRB 130, 132 (1986) ("The Board has long held that there are certain parameters within which em- ployees may act when engaged in concerted activities The protections Section 7 affords would be meaningless were we not to take Into account the realities of mdustnal life and the fact that disputes over wages, hours, and working conditions are among the disputes most likely to engender ill feelings and strong responses ") We find It unnecessary to decide whether the discharge also violated Sec 8(a)(3) See Postal Service, supra, 250 NLRB at 6 2 The judge provided for a broad order requiring the Respondent to cease and desist from mfnngmg "in any other manner" the rights guaran- teed employees by Sec 7 of the Act We have considered this case in light of the standards set forth in Hickmott Foods, 242 NLRB 1357 (1979), and have decided that the broad remedial language is not required Ac- cordingly, we shall modify par 1(c) of the recommended Order to use the narrow injunctive language, "in any like or related manner" land, Ohio, its officers, agents, successors, and as- signs, shall take the action set forth in the Order as modified 1 Substitute the following for paragraph 1(c) "(c) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act" 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 post and abide by this notice WE WILL NOT threaten employees with loss of overtime work, privileges, or benefits for support- ing any union or engaging in other protected, con- certed activities WE WILL NOT lay off or terminate employees be- cause they act together for mutual aid or protec- tion or engage in other protected, concerted activi- ties WE WILL NOT in any like or related manner interfere with, restrain, or coerce you m the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL offer Michael F Bruce 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 suffered resulting from his indefinite layoff and/or discharge, less any net interim earn- ings, plus interest WE WILL notify him that we have removed from our files any reference to his indefinite layoff and/or discharge and that the indefinite layoff and/or discharge will not be used against him in any way DOUGHERTY LUMBER COMPANY Richard A Mack, Esq , for the General Counsel Howard F Levy, Esq , of Cleveland, Ohio, for the Re- spondent DECISION WILLIAM A POPE II, Administrative Law Judge In a complaint, dated July 21, 1986, the Regional Director for 299 NLRB No 36 296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Region 8 of the National Labor Relations Board alleged that the Respondent, Dougherty Lumber Company, vio- lated Section 8(a)(1) and of the Act by threatening and laying off its employee, Michael F. Bruce, because he supported and assisted a union. The charge was filed by Michael F. Bruce on June 6, 1986. Trial took place before Administrative Law Judge William A. Pope II in Cleveland, Ohio, on December 13 and 14, 1988.1 Background Dougherty Lumber Company has been engaged in the retail lumber business in Cleveland, Ohio, for many years. Dougherty Hanna Resources is a holding compa- ny which controls Dougherty Lumber Company and In- dustrial Wholesale Lumber Company, both of which are located at the same place in Cleveland, Ohio. Paul Henry, who began his employment with Dougherty Lumber Company in 1961, is the general manager of Dougherty Hanna Resources, and its subsidiary compa- nies. The Charging Party, Michael F. Bruce, is Paul Henry's nephew by marriage. His mother is the sister of Paul Henry's wife. Henry, at his wife's request, gave Bruce a job at Dougherty Lumber Company, as a tally- man in the Company's lumberyard in 1980, after Bruce was laid off from his previous job. At his wife's request, Henry also gave employment at Dougherty Lumber Company to another of his wife's nephews, David Hines. Bruce continued to work for Dougherty Lumber Com- pany until May 23, 1986, when Henry laid him off. Bruce has not been recalled by Dougherty Lumber Company. As of the time of the hearing, David Hines was still employed by Dougherty Lumber Company. Bruce received written confirmation of his layoff in a letter from Dougherty Lumber Company, dated May 30, 1986, signed by Mark Hanna, the president (and owner) of Dougherty Lumber Company, which stated, in part, that he had been "laid off effective Friday, May 23, 1986, at 3:00 p.m. for an indefinite period, as a result of your insubordination and refusal to work on May 23, 1986, and thereafter." From the early 1950s until sometime in mid-1986, the Dougherty Lumber Company's yard workers were rep- resented for collective-bargaining purposes by Teamsters Local Union 436. Charging Party Bruce was a member of the Union. Eugene L. Kotecki was the union steward at Dougherty Lumber Company, a position he had held for 20 years. The last collective-bargaining agreement be- tween Dougherty Lumber Company and Teamsters Local Union 436 expired on April 30, 1986. Negotiations between the Company and the Union failed to produce a new collective-bargaining agreement, and a strike by bar- gaining unit employees took place in July 1986. A letter to the editor, written by Charging Party Bruce, was published in the March 27, 1986 edition of the Akron Beacon Journal, a newspaper published in Akron, Ohio, under the caption, "Unions faced with big challenge," in a section of the newspaper entitled "Voice of the people." In the letter, Bruce expressed his support 1 Respondent's prehearing Motion, renewed at the start of the hearing, for Summary Judgment was denied. for unions, and urged that "[t]he people, the working class and the unions have to pull together [and] honor one another's picket lines and not buy products from companies that are in strike negotiations." Elsewhere in the letter, Bruce said that the union contract with his employer, which he did not identify, would expire on May 1, and although the company's gross income had risen from $300,000 a month to over $1 million a month in 6 years, he had not had a pay raise in 5 years. Issues The complaint alleges that during late March or early April 1986, Respondent, acting through its general man- ager, violated Section 8(a)(1) of the Act by threatening to forbid its employee, Michael F. Bruce, to work over- time on Saturdays; by threatening to decline to finance a home for his mother, and by threatening to refuse to give him tickets to Pittsburgh Steelers football games, as had been customary in the past, all because Michael Bruce had engaged in protected concerted activities. The complaint further alleges that on or about May 23, 1986, Respondent violated Section 8(a)(1) and (3) of the Act by indefinitely laying off and/or terminating its employ- ee, Michael F. Bruce, because he had engaged in protect- ed concerted activities, and in order to discourage em- ployees from engaging in such activities or other con- certed activities for the purpose of collective bargaining or other mutual aid or protection. Arguments of the Parties A. General Counsel General Counsel contends that Michael Bruce was en- gaged in protected activity when his letter to the editor was published, and when he disseminated copies to his fellow employees. He was also engaged in protected concerted activity on May 23, 1986, when he and other yard employees sought to set the remainder of the day off in honor of a supervisor killed on the job. Nothing in the letter was "scurrilous, malicious or dis- loyal to Respondent," or constituted "disparagement of Respondent." Instead, the letter was related to an ongo- ing labor dispute, and "generally discussed the value of acting concertedly through organized labor." Therefore, it was a protected activity under Section 7 of the Aet. In the view of the General Counsel, the evidence shows that Paul Henry, Respondent's general manager, was incensed and enraged when he learned that Bruce had written the letter and disseminated it to other em- ployees, and Henry retaliated by threatening to deny Bruce overtime work on Saturdays, to no longer provide Pittsburgh Steelers tickets to Bruce, and not to finance Bruce's mother's home. In fact, says the General Coun- sel, Henry admitted in his testimony that he "very well" could have said he would not provide football game tick- ets to Bruce, and that he could have said that he had the authority to not offer Bruce overtime work. That testi- mony, contends the General Counsel, "is tantamount to an admission the alleged threats Were made." Henry's threats demonstrated animus and were coercive. DOUGHERTY LUMBER CO 297 It is clear from the record, which shows that none of the employees went back to work after the lunchbreak on May 23, 1986, following the on-the-job death of a co- worker, that the employees were engaged in concerted action Bruce's involvement in the concerted action is shown by the fact that he and the union steward asked management if the men could go home in honor of the worker who had been killed earlier in the day General Counsel contends that Respondent seized on an intemperate remark made by Bruce to Company Offi- cial Svoboda as a pretext for discharging him The evi- dence of record is sufficient to sustain the General Coun- sel's burden of making a prima facie showing that Bruce's protected conduct was a "motivating factor" in the employer's decision The Respondent has failed to sustain its burden of proof by demonstrating by a pre- ponderance of the evidence that it would have taken the same action even in the absence of the protected con- duct Under Wright Line, therefore, the General Coun- sel's prima facie case stands unrefuted and a violation of the Act may be found B Respondent Respondent contends that Bruce "was discharged for his individual, insubordinate refusal to accept instructions of his supervisor" Therefore, his discharge did not vio- late the Act Further, the Respondent says, Bruce's refusal to work on May 23, 1986, "was action taken solely by [him] and not with or on the authority of any other employee" The fact that other employees also wanted to take the remainder of the day off is not evidence of concerted ac- tivity Here, the General Counsel has not offered any evidence that the other employees independently ex- pressed a desire to cease work for the remainder [of the day]," or that the Respondent was speaking for anyone other than himself There is no evidence that Svoboda, who discharged Bruce "immediately upon his insubordi- nate statement that he would not work the remainder of May 23rd or ever again," was even aware of Bruce's ear- lier letter to the editor Thus, there is no evidence that the letter was a factor in Bruce's layoff Respondent contends that there is clear evidence that the statements made to Bruce by Henry upon learning of the letter were strictly motivated by his belief that Bruce "was abusing his familial relationship with Mr Henry, not because of the exercise of any protected activity" In Respondent's view, the evidence shows that Bruce vio- lated work rules and mistreated others on the assumption that his status as Henry's nephew would protect him, and that he went so far as to even ridicule his uncle Henry's discussion with Bruce in early April 1986 re- garding football game tickets and a home for Bruce's mother, related to an ongoing family dispute, and were not Intended by Henry to interfere with Bruce's right to engage in protected activity Moreover, Henry's gift of football game tickets to Bruce and the purchase of a home for Bruce's mother were unrelated to the terms and conditions of Bruce's employment Finally, Respondent requests reconsideration of the ad- ministrative law judge's refusal to allow the Respondent to call counsel for the General Counsel as a witness in this proceeding, and reopening of the record for the pur- pose of taking the testimony of counsel for the General Counsel 2 According to Respondent, 29 CFR § 102 118 (1980), notwithstanding, the administrative law judge must make an independent determination whether to uphold General Counsel's refusal based on a claim of privilege FINDINGS AND CONCLUSIONS Two questions are presented concerning the publica- tion and distnbution of Charging Party Bruce's letter to the Akron Beacon Journal The first is whether Bruce en- gaged in concerted protected activity by submitting the letter to the newspaper and, after the newspaper had published the letter, by distributing copies of it to em- ployees of the Respondent If it was protected concerted activity, the second question is whether Respondent, through its general manager, violated Section 8(a)(1) of the Act by threatening Bruce, because of his protected concerted activities concerning the letter A It is well settled that "an employee may properly engage in communication with a third party in an effort to obtain the third party's assistance where the communi- cation [is] related to a legitimate, ongoing labor dispute between the employees and their employer, 3 and where the communication [does] not constitute a disparagement or vilification of the employer's product or its reputa- tion" Allied Aviation Service Go, 248 NLRB 229, 230 (1980) 4 In the same case, the Board said that if the com- 2 Respondent requested that he be permitted to examine Richard A Mack, counsel for the General Counsel, concerning statements made to him by Charging Party Bruce about his efforts to get Eugene Koteclu to testify as a witness in this matter Respondent's counsel indicated that his purpose in calling Mack was to determine whether there was impeaching material contained in any statements made by Bruce concerning the al- leged bnbery attempt, and to obtain from Mack the General Counsel s reason for delaying the hearing in this case ongmally set in June 1988 Apparently, Respondent's preheanng request to the General Counsel for permission for Mack to testify was denied The Respondent's request at the hearing for permission to call Mack as a witness was denied, pursuant to Sec 102 118 of the Board's Rules, and because Respondent had shown no overriding reason for an exception to the rule (R Exhs 114-128) Upon reconsideration, I find that the ruling denying Respondent permis- sion to call counsel for the General Counsel as a witness in this case was appropriate, for the reasons stated during the hearing While the Supreme Court in East= Inc v NLRB, 437 U S 556, 566-567 (1978), said that "at some point the relationship becomes so at- tenuated that an activity cannot fairly be deemed to come within the 'mutual aid or protection' clause," in that case the Court upheld the Board's finding that the protection of Sec 7 (of the National Labor Rela- tions Act) extended to a newsletter urging employees to write to their legislators opposing a change in the Texas constitution incorporating a "right-to-work" statute, and criticizing a presidential veto of an Increase in the minimum wage and urging employees to register to vote to "defeat our enemies and elect our fnends " 4 In Roure Bertrand Dupont, 271 NLRB 443 (1984), the Board found that an employee "was engaged in protected concerted activities within the meaning of the National Labor relations Act when he spoke to [a] newspaper reporter" about employee problems and the employees' rea- sons for striking their employer The employee's conversation with the reporter led to a published newspaper article 298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD munication is related to an ongoing dispute, it does not matter whether the communication was sent early in the dispute, or at a later date after all internal avenues had been exhausted. 5 The Board also said that "absent a ma- licious motive, [an employee's right to appeal to the public is not dependent on the sensitivity of Respondent to his choice of forum." The letter from Charging Party Bruce to the Akron Beacon Journal, published on March 27, 1986, was plain- ly related to an ongoing dispute between Respondent and its employees represented by Teamsters Local Union 436 over the renewal of the collective-bargaining con- tract between the company and the union, which was due to expire on April 30, 1986. The letter was a call for public support of unions and employees engaged in con- tract negotiations, and, Bruce put his appeal in context by stating that the union contract with his employer, which he did not name, was due to expire soon, and by attempting to justify a raise in pay. The letter being at least related to an incipient dispute between Respondent and its employees, it was a protected activity regardless of whether or not the negotiations had yet broken down, or a strike was being considered at that point by the em- ployees. The contents of Bruce's letter did not disparage Re- spondent's management, products, or reputation, indeed, neither Respondent's name nor the name of any member of its management was mentioned in the letter, nor was there any reference to the nature of its business or its products. Neither was it disparaging of the Respondent for Bruce to urge union members not to cross one an- other's picket lines or buy products from companies in strike negotiations. Accordingly, I find that Charging Party Bruce's letter to the Akron Beacon Journal, which published it, was a protected concerted activity. The sending of the letter to the newspaper being protected, it follows that Bruce's distribution to fellow employees (or anyone else) of copies of the letter as published by the newspaper was also a protected activity. B. Over a period of years, starting before he became an employee of Dougherty Lumber Company, Charging Party Bruce regularly attended Pittsburgh Steelers pro- fessional football games as the guest of his uncle, Paul Henry, using tickets which apparently were made avail- able to Henry by Dougherty Lumber Company. When Henry had extra tickets, he and his wife regularly of- fered tickets to Bruce and, apparently, at times to friends of Bruce. No other employees of Dougherty Lumber Company regularly attended Pittsburgh Steelers football games with Henry, although from time to time, on an ir- regular basis, the company offered tickets to other em- ployees. In early 1986, Henry accommodated his wife's request by purchasing a house located in Stow, Ohio, for the purpose of renting it to Mrs. Henry's sister, who is Charging Party Bruce's mother. The property was pur- 5 Allied Aviation Service Co., supra, 248 NLRB at 231. 6 Id. chased by Paul Henry, and his wife, Pauline Henry, using funds obtained through a mortgage loan, dated May 12, 1986, in the amount of $64,800. Henry made a downpayment of $20,000, and had improvements valued at $15,000 made to the house. Henry and his wife rented the house to Mrs. Henry's sister for $600 per month, which is less than the monthly mortgage payment. During his testimony in this case, Henry stated that he and his wife had separated since buying the house, but that as far he knew, his wife's sister still occupied the house. 7 There was no evidence offered to rebut Henry's testimony. There is no dispute that after the Akron Beacon Journal published the letter written by Bruce, he had a discussion with Henry about it in Henry's office at Dougherty Lumber Company. Henry conceded in his testimony that the subjects of football tickets and financing of a house for Bruce's mother could have come up during the dis- cussion. He stated that he could have said that it was not necessary for the company to offer overtime to Bruce. Michael Bruce testified that he was called to Paul Henry's office in April 1986, and while there was asked by Henry for a copy of the newspaper article he had written. He gave Henry a copy, and Henry read it. Ac- cording to Bruce, after Henry had read the article, he said, "You know, I was thinking about financing your mother's house, but after reading this, I don't know." Bruce said that he asked Henry what that had to do with him, and Henry replied, "It doesn't have nothing to do with you. You always think of yourself, you and your wife both." Bruce testified that Henry also told him that there would be no more Pittsburgh Steelers football games tickets, and, "no more Saturdays." Bruce said that he had been going to Pittsburgh Steelers home games for 12 years, and considered the tickets to be gifts, "not a part of my job." Henry admitted that when he learned of the newspa- per article written by Bruce from another company em- ployee, he summoned Bruce to his office at Dougherty Lumber Company, and read the article, a copy of which he requested and obtained from Bruce, in Bruce's pres- ence. Henry said that he "could well have told Bruce" on that occasion that he was not going to give him Pitts- burgh Steelers tickets anymore. Asked why he said that after reading the article, Henry said, "because he had abused my family privileges and my relationship as being his uncle." Henry said further that he thought that Bruce was trying to make him look foolish. Henry also agreed that the subject of the financing of a home for Bruce's mother could have come up. But, he said, he had already purchased the home and signed the mortgage,5 and he denied he suggested to Bruce that he 7 Paul Henry testified at the hearing that he and his wife had separated and were in the process of getting a divorce. He stated that they were living apart in May 1986. According to Henry he had lived in Cleveland, Ohio, since 1976, but his wife had refused to move to Cleveland, and continued to live in Pittsburgh, Pennsylvania. The date the mortgage document was signed was May 12, 1986. Bruce's letter to the editor was published on March 27, 1986. Bruce testi- fied that he was called into his uncle's office in early April. I credit Bruce's testimony on this point, and I find that Henry had not completed purchase of the house for Bruce's mother when he spoke to Bruce about the newspaper article. DOUGHERTY LUMBER CO 299 - I should not have done it According to Henry, he said, "You know, I don't know how much more you feel I should do for your family" Henry agreed that he could have said to Bruce on that occasion that he had the authority not to offer overtime to Bruce Henry also agreed that the reason he could have made that statement was because he was displeased about the article being distributed to other company em- ployees Having had the opportunity to observe the demeanor of the witnesses, and considering Henry's admissions, I find Charging Party Bruce to be the more credible wit- ness concerning the April 1986 discussion he had with Paul Henry 9 I find that during the discussion he had with his wife's nephew, following publication of Bruce's letter to the editor in the Akron Beacon Journal, Henry raised the possibility that he would not go through with the purchase of a house for Bruce's mother, and told Bruce that there would be no further Pittsburgh Steelers football game tickets or overtime work on Saturdays In the context in which they were made, those statements, regardless of whether or not Henry followed through with them, were threats of retaliatory action against his nephew, Charging Party Bruce 10 The remaining question is whether or not the threats made by Paul Henry on that occasion were related to Bruce's protected concerted activity I find that they were The event which provoked the threats by Henry was the newspaper publication of Bruce's prounion letter to the editor and dissemination of the published letter to other company employees It is clear that Henry consid- ered the letter to be a personal affront and disloyalty to both him and the company It may well be that Henry had other reasons of a per- sonal nature which caused him to feel that his wife's nephew was ungrateful and self-centered, and had used and betrayed him Whatever part such feelings may have played in prompting Henry to threaten Bruce with retali- atory action, however, is irrelevant in determining whether or not he violated Section 8(a)(1) of the Act" The Board has held that 9 I find there to be no merit to Respondent's contention that Bruce at- tempted to bribe Union Steward Koteclu to testify for /um Koteclu testi- fied that he had two telephone conversations with Bruce concerning whether or not Koteclu Intended to go to the hearing in this case Ko- teclu said that he told Bruce that he did not want to go to the hearing Bruce said that he could be subpoenaed, and asked Koteclu if he would go if Bruce gave him $1000 But, Koteclu also said that he did not dis- cuss what testimony he might give with Bruce In the absence of any at- tempt by Bruce to Influence Koteclu's testimony, the offer of $1000, if, indeed, It was an offer, did not amount to an attempted bribery As there was no attempted bnbery, I find that the offer of 81000 is irrelevant to the question of Bruce's credibility 1 ° The parties stipulated, however, that Dougherty Lumber Company did not deny Saturday overtime work to Bruce, and that Henry pur- chased a house, to which he holds title, and rented It to Bruce's mother Based upon all of the evidence, I find that Henry did not offer Pittsburgh Steelers football game tickets to Bruce after that discussion In view of my finding that Henry's motives are irrelevant, I find It unnecessary to determine whether Henry was justified in feeling that Bruce had abused his relationship to Henry, or had mistreated others on the assumption that his status as Henry's nephew would protect him, or had ridiculed his uncle c I mterference, restraint, and coercion under Section 8(a)(1) of the Act does not turn on the employer's motive or on whether the coercion succeeded or failed The test is whether the employer engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of employee rights under the Act American Frerghtways Cc, 124 NLRB 146, 147 (1959) Here, the interference with Bruce's Section 7 rights could hardly be more plain The incident which prompt- ed the threats by Henry was the publication and dissemi- nation of Bruce's prounion letter, a protected concerted activity, at a time when Dougherty Lumber Company, which employed both Bruce and Henry, was engaged in negotiations with the Union representing Bruce and other employees over the terms of a new collective-bar- gaining agreement Henry made the threats of retaliatory action, in his office, where he was acting in his capacity as general manager of Dougherty Lumber Company, and the threats involved not only personal action by Henry, but action by Dougherty Lumber Company, as well, in the form of a threat to deny Bruce overtime work on Saturdays 12 Accordingly, I find that Respondent violated Section 8(a)(1) of the Act by the threats of retaliatory action made in or about April 1986 by its general manager, Paul Henry, against its employee, Charging Party Michael F Bruce, because of publication on March 27, 1986, by the Akron Beacon Journal newspaper, of a letter to the editor written by the Charging Party II The remaining issue is whether the Respondent violat- ed Section 8(a)(1) and (3) of the Act by indefinitely laying off and/or terminating its employee, Charging Party Michael F Bruce, on or about May 23, 1986 I find that it did A On the morning of May 23, 1986, Stanley Grabowski, Respondent's lumberyard foreman, died at a hospital as a result of accidental injunes sustained earlier in the morn- ing while at work Although the Company's other em- ployees were aware soon after the accident occurred that Grabowski had been seriously injured, they did not learn that he had died until about lunchtime After learning of Grabowslu's death, a number of Respondent's lumber- yard employees, including Charging Party Bruce, wanted to go home, apparently out of respect for Gra- bowski It is amply established through the testimony of witnesses for both the General Counsel and the Re- spondent that the yard employees discussed their desire to go home among themselves, and with Union Steward Eugene L Kotecki Kotecki told the employees that there was no union contract, and advised them to wait is Considenng the setting in which Henry made the threats to Bruce, It would be no defense to a violation of Sec 8(a)(1) even if the threats did not have a direct bearing on Bruce's employment It is sufficient that Henry threatened to penalize Bruce in some fashion because of his pro- tected concerted activities 303 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD until Paul Henry returned, expressing fear that their ac- tions might be considered a walkout. The lumberyard employees, as a group, did not return to work after their lunch period ended at 12:30 p.m., but instead, gathered around the Company's offices, where most, if not all, of them remained until General Manager Henry returned about 2 p.m. and told them to go back to work. After the lunch period had ended, Charging Party Bruce and Union Steward Kotecki entered the company offices and spoke to Richard "Rocky" Svoboda, a sales- man and longtime employee of the Company, who, in the past had acted as yard superintendent or yard fore- man in the absence of Stanley Grabowski and, on that day, had been called in to take over Grabowski's duties after Grabowski had been injured. Kotecki, testifying as a witness for Respondent, admitted that the purpose of meeting with Svoboda was to request permission for the employees to leave." Charging Party Bruce asked Svo- boda if the mill would be closed for the afternoon. Svo- boda refused to give permission for the employees to go home. Based on the evidence of record, I find that Bruce and Kotecld were engaged in protected concerted activity under the Section 7 of the Act when Bruce, accompa- nied by Kotecki, acting in his capacity as union steward, asked Svoboda for permission to stop working for the rest of the day because of Grabowski's death. Section 7 of the Act protects concerted activities for the purpose of either collective bargaining or "other mutual aid and protection." An activity is protected by Section 7 when it arises out of the employment relationship and is of common interest to other employees. Here, Charging Party Bruce was acting in the interest of most, if not all, of his fellow employees, concerning a matter which the employees had discussed and agreed upon, that being their desire to stop work for the rest of the day because of the death of Stanley Grabowski. The concerted nature of the request made by Bruce to Svoboda is further shown by the fact that he was accompanied by the union steward, who, despite professed personal reservations, joined Bruce in making the request, and associated him- self with it. In the context in which it was made, the re- quest for the rest of the day off delivered by Bruce to Svoboda was clearly protected concerted activity." 13 Kotecki testified that he was against asking Svoboda for permission to leave, and denied that he asked Bruce to accompany him, as Bruce testified. But, any reservations he may have had notwithstanding, Kotecki did not return to work after the lunchbreak, he did accompany Bruce to see Svoboda for the purpose of requesting the rest of ale day off, and he did not return to work after seeing Svoboda until General Manager Henry returned and told the employees to go back to work. On the basis of these facts, I find that by his conduct and participation in the actions of the other employees in not returning to work after their lunch period had ended, Kotecki joined Bruce in asking Svobada for the rest of the day off. 14 A contrary result is not required under either Meyers Industries, 268 NLRB 493 (1984), or Tobias Kotiin Co., 271 NLRB 1200 (1984), cited by the Respondent. In the instant case, the evidence shows that Bruce's co- workers had, after discussion among themselves, agreed that they wanted the rest of the day off. It is inferable from the circumstances that they knew that Bruce and Kotecki were going to make a request to manage- ment that the employees be given the rest of the day off, authorized the action, either explicitly or implicitly. In any event, Kotecki, the union steward, acting on behalf of the employees represented by the union, B. There was considerable variance in the testimony of Bruce, Kotecki, and, Svoboda concerning what was said and by whom when Bruce and Kotecki met with Svo- boda. By all accounts, however, the meeting was con- frontational. According to Bruce, when he asked Svoboda if the employees could go home, Svoboda responded by asking if the employees wanted to work overtime on Saturday, the next day. Interpreting Svoboda's attitude to be one of "business as usual," Bruce replied, "No, I don't want to work overtime tomorrow. I don't want to work for a long time." After saying that, Bruce testified, he apolo- gized to Svoboda, and walked out. Svoboda testified that Bruce and Kotecki came unin- vited to his office, and someone, he did not know if it was Bruce, asked if the men could go home. According to Svoboda, he replied that they would have to wait for Paul Henry to return. Svoboda said that when he tried to give work orders to Bruce, Bruce said, "I don't have to work today. I don't have to work tomorrow, and I don't ever have to do it." Svoboda said that he respond- ed by saying to Bruce, "Well, if that's the case, well, then we don't need you anymore. You can leave and don't come back." Svoboda denied that he said anything about overtime work the next day to Bruce and Kotecki. He also testified that he did not remember telling the em- ployees that they could clock out, nor did he recall re- ceiving an apology from Bruce. Kotecki recalled in his testimony that Bruce said to Svoboda, "What are we hanging around here for? We should go home." And, Bruce told Svoboda that "he didn't care if he comes [sic] back today, tomorrow, Or ever." Svoboda's response was, "You don't want to work, get out of here." Kotecld said he did not remem- ber Bruce apologizing to Svoboda. Taking into account the entire record, and after weighing the credibility of the witnesses, I find that Bruce did make a remark to Svoboda to the effect that he did not intend to work that day, or the next, and maybe never." The statement that he did not intend to return to work was couched in terms of his own action, and made no reference to similar action by the other em- ployees. A work stoppage was not a matter which Bruce had discussed with his fellow employees, nor is there any evidence that the other employees had agreed upon a work stoppage. Under these circumstances, it is clear that Bruce's remark to Svoboda was not concerted activ- ity. Thus, it is not protected by Section 7 of the Act." joined Bruce in making the request. Clearly, Bruce was not acting alone and for his own benefit. To the contrary, he was acting with and on the authority of other employees. 15 I also find that Svoboda, for whatever reasons, handled the situation with considerable insensitivity. Had he taken a few moments to explain why he would not, or could not, give the employees, the rest of the day, all that followed might well have been avoided. 16 But, while the remark may have been intemperate, it was not abu- sive or disruptive. There is no evidence that any of the other employees, with the exception of union Steward Kotecki, heard the remark, and, in any event, it did not precipitate a work stoppage. Although none of the yard employees returned to work until later, they were not directed to return to work until Henry returned, and when he ordered them to go back to work, all of them complied, including Bruce. DOUGHERTY LUMBER CO 301 After meeting with Bruce and Kotecki, Svoboda left his office and distributed work orders to the lumberyard employees At that time, according to the testimony of Val Giblock, an employee called as a witness by Re- spondent, whose testimony on this point I find to be credible, Svoboda asked the men if they wanted to work overtime the next day, Saturday, and told them to wait for Henry's return before clocking out He did not direct the employees to go back to work The yard employees accepted the work orders from Svoboda, but did not go back to work Subsequently, about 1 p m, Michael Hel- frig, another company salesman, who had talked to Paul Henry about the situation, told the employees to wait for Henry, who, he said, wanted to talk to them 17 He did not direct the employees to return to work, and it is un- disputed that they did not return to work at that time After Svoboda met with the employees, Bruce and two other employees, David Hines," and Jerry Masa- deg, clocked out 19 Masadeg left work, but Bruce and Hines remained Charging Party Bruce testified that Ma- sadeg said he was sick 20 There is nothing in the record, however, indicating that he was given permission to leave work by anyone in authority at Dougherty Lumber Company At the hearing, General Manager Henry testified that he was aware that Masadeg had gone home, but he did not know why It is undisputed that after returning to Dougherty Lumber Company at between 1 30 and 1 45 p m, Paul Henry spoke to the yard workers, who had still not re- turned to work While there is disagreement among the witnesses at the hearing concerning all that Henry said, it is undisputed that he told the employees to go back to work There is no evidence that any of the employees, with the exception of Masadeg, who had gone home, failed to return to work when instructed to do so by General Manager Henry According to Bruce, Henry seemed irritated when he came out I-le asked whose idea it was, and why the men were not working Bruce testified that Henry told the employees that Stanley (Grabowski) would want them to work, and that the employees could clock out if they wanted to, but he, Henry, would consider it a walkout Bruce said that he and everyone else went back to work, although he did not clock back in, because Henry was angry, and he did not want Henry to find out that he had clocked out Val Giblock, Respondent's witness, agreed that Henry appeared to be angry when he came out He said that Bruce was sitting with the men when Henry came out ' 7 Helfng had gone to Grabowski's home, where Henry was waiting for Grabol,vskes widow to return, and told Henry that the employees wanted to go home According to Henry, he told Helfng to return to the plant, and tell the employees that he wanted them to go to work 12 Charging Party Bruce's cousin ' 2 Bruce's timecard shows that he clocked out at 12 56 pm Masadeg's timecard shows that he clocked out at 12 50 p m Hines' timecard shows that he clocked out at 12 55 p m, but that entry on his timecard appears to have been scratched out 2° Union Steward Kotecki also said in his testimony that Masadeg was sick He said he did not know exactly what Bruce did after Henry came out Eugene Kotecki, also testifying as a witness for the Respondent, stated that when Henry came back, he told the men to go back to work, and said that "Stanley would like it that way" He said that Henry did not ask whose idea it was Paul Henry testified that he told the employees to return to work, and that he also told them "it was sort of company policy not to shut the plant down on occasions like this" According to Henry, Bruce responded by saying that "he wasn't going to work there today He wasn't going to work there no more, and he may never work there again" Henry testified he walked back into his office because he did not want another confrontation right after Grabowski's death Soon after telling the employees to go back to work, Henry sent for Bruce and Kotecki, and terminated Bruce's employment According to Bruce, Paul Henry told him that he was fired, and to get his things and get out Bruce said that Henry refused to tell him why he was being fired, but, in an apparent change of mind, said that Bruce was laid off Bruce testified that Henry said the Company would not contest his entitlement to unemployment compensation, and that he would be paid any money the Company owed him Kotecki testified that Henry told him to get Bruce, and that he found Bruce doing cleaning work and brought him to Henry's office He said that Henry talked to Bruce about the incident, and mentioned that Bruce had given Svoboda a hard time and had clocked out Then Henry laid off Bruce Paul Henry testified that after telling the employees to return to work, he learned from Helfng and Svoboda about the remark that Bruce had made to Svoboda, and that Svoboda had fired Bruce 21 Henry said he told Svo- boda that he was the shipping superintendent, and that if he fired Bruce, the decision would stand Henry sent for Bruce and Koteclu, but, he said, he talked to Bruce, alone According to Henry, he was mad enough at Bruce to fire him, but, on reflection, decided to lay him off so that he could draw unemployment Henry said that he first heard Bruce say he would not return to work when he met with the employees outside and told them to return to work He later heard from Svoboda that Bruce had made the same remark to him Henry denied that the first time he heard the remark at- tributed to Bruce, to the effect that he would not work that day and might not work later, was from Svoboda Henry said he thought that his affidavit said that he first heard Bruce make the remark outside, then learned he had earlier said the same thing to Svoboda According to Henry, his statement in his affidavit about having heard of the remark from Svoboda referred to his conversation with Svoboda after he returned from talking to the em- 2 ' Svoboda, by way of contrast, testified that he was sure that he told Henry that he had fired Bruce, or told him to go home, but that he did not tell Henry his reasoning at that time, or what had happened Svobo- da's explanation for the cryptic explanation which he gave to Henry was that he was busy at the time 302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ployees. Henry acknowledged that he could have said in his affidavit that all of the employees had clocked out, but, he explained, he had not actually looked at the time- cards. He said that he assumed that all of the employees had clocked out when Bruce told him, "I'm not working here tomorrow and I may never work here again." Henry testified that he put Bruce on permanent layoff, "because we had a lot of problems with him." 22 He went on to say that he felt that he should back up Svo- boda, or not ask him to do the job. According to Henry, he had no personal reasons for laying off Bruce. He said that this incident was Bruce's third disciplinary incident, and it was the Company's policy to discharge employees after three disciplinary incidents. Charging Party Bruce does not deny that after he spoke to Svoboda, he clocked out. From the evidence of record it is clear that at about the same time as Bruce clocked out, two other employees, Jerry Masadeg and David Hines, also clocked out. Masadeg left for the day, but Bruce and Hines remained at the Dougherty Lumber Company with the rest of the yard employees. The clock-out entry on Hines' timecard was scratched out. The entry on Bruce's card was not. I further find that whatever Masadeg's reason for leaving work may have been, it was not known to Paul Henry at the time he per- manently laid off Charging Party Bruce. There is no evi- dence that any of the yard employees returned to work until approximately 2 p.m., after being told to do so by General Manager Henry. I do. not credit Paul Henry's testimony that Bruce told him that he would not return to work. It appears that Henry's testimony to that effect is in conflict with his sworn statement. That aside, neither of Respondent's wit- nesses, Eugene Kotecki and Val Giblock, whose testimo- ny I do find to be credible, supported Henry's version that Bruce said, under circumstances from which it must be presumed that Henry meant that the other employees were present, that he would not return to work. Based on the entire record, I find that Bruce did not tell Henry that he would not return to work, and that Henry's testi- mony that he did is not true. Whatever Bruce may have said to Svoboda, or Henry, about not returning, to work, I find that the evidence clearly shows that when Henry ordered the employees to return to work, all of those present, including Bruce, complied. Union Steward Kotecki testified that Bruce was sweeping the floor, which was his assigned duty, when he found Bruce after Henry told him to bring Bruce to Henry's office. There is no evidence to refute• or contradict Kotecki's testimony. Clearly, an employer cannot be guilty of discriminator- ily discharging an employee unless it actually or con- structively discharged the employee. 'Here, the Respond- 22 Respondent offered testimony at trial regarding several disciplinary actions taken by the company against Bruce. The Respondent also com- pared Bruce's disciplinary record to that of other former employees who had been discharged for disciplinary reasons. From this evidence, Re- spondent argues that Bruce had been a troublesome employee, who took advantage of his relationship to Paul Henry, and that the punishment im- posed upon him for refusing to work and insubordination was not dispar- ate to how other employees involved in disciplinary infractions had been treated in the past. ent's action is variously characterized as a permanent layoff, or indefinite layoff of its employee, Charging Party Bruce: Whatever Respondent's representatives may have termed the action at the time, it amounted to nothing less than discharging Bruce. General Manager Henry stated that at first he intended to fire Bruce, but on reflection, he decided to put him on permanent layoff so that Bruce could draw unemployment compensation. It is quite clear from Henry's testimony that he terminat- ed Bruce's employment with every intention that the ter- mination be a permanent one. His action was affirmed by Respondent's owner, Mark Hanna, who called the action an indefinite layoff. It is equally clear under the circum- stance, that Hanna had no intention of recalling Bruce. An indefinite or permanent layoff, under these circum- stances, is merely a euphemism for discharge. The essential elements of a discharge in violation of Section 8(a)(3) are "a knowledge on the part of the em- ployer that the employee is engaged in union [or other protected concerted] activity and the actual discharge of the employee because of this activity." Wheeling-Pitts- burgh Steel Corp. v. NLRB, 618 F.2d 1009 (3d Cir. 1980). In Wright Line, 251 NLRB '1083 (1980), modified 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the Board established the procedure to be used in deter- mining employer motivation in cases alleging violation of Section 8(a)(3) or Section 8(a)(1), where an employer has both permissible and impermissible reasons under the Act for its action. Referring to its decision in Wright Line, the Board, in Roure Bertrand Dupont, 271 NLRB 443 (1984), said: We held that first the General Counsel had to "make a prima facie showing sufficient to support the inference that protected conduct was a 'motivat- ing factor' in the employer's decision. Once this is established the burden will shift to the employer to demonstrate that the same action would have taken place even in the absence of the protected con- duct." Wright Line, 251 NLRB at 1089 (footnote omitted). We have held that the burden shifted to an employer under Wright Line is one of persuasion, an affirmative defense in which the employer must demonstrate by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. If an em- ployer fails to satisfy its burden of persuasion, • the General Counsel's case stands unrefuted and a viola- tion of the Act may be found. Citing NLRB v. Transportation Management Corp., 462 U.S. 393 (1983), the Board, in Roure Bertrand Dupont, went on to state: Thus it is now clear that in rebutting the General Counsel's prima facie case—that the protected con- duct was a "motivational factor" in the employer's decision—an employer cannot simply present a le- gitimate reason for its action but must persuade by a preponderance of the evidence that the same action would have taken place even in the absence of the protected conduct. DOUGHERTY LUMBER CO 303 The initial question in this case, therefore, is whether the General Counsel has made a pnma facie showing suf- ficient to support the inference that protected conduct was a motivating factor in the employer's decision to dis- charge Charging Party Bruce I find that the General Counsel has met that burden The earlier incident in late March or early April in- volving publication of Bruce's proumon letter to the editor of the Akron Beacon Journal, considered in the context of a labor dispute between the company and its employees who were members of Teamsters Local Union 436, clearly demonstrates Henry's union animus, and his personal hostility towards Bruce because he pub- licly supported unions Henry admitted that because of the letter he felt that his nephew was ungrateful and dis- loyal, and had embarrassed him, personally When Bruce, less than 2 months later, once again en- gaged in concerted activity, which was at least tangen- tially related to the union with which Dougherty Lumber Company had a dispute, Henry terminated his employment At the time Bruce made the request for the rest of the day off to Svoboda, he was accompanied by the union steward, and, Henry knew before returning to the Respondent's lumberyard employees, who were members of Teamsters Local Union 436, wanted the rest of the day off Henry was angered by the situation, and immediately after telling the union employees to return to work, he called Bruce in and terminated his employ- ment From this, it is readily inferable that in terminating Bruce's employment, Henry was motivated by his dis- pleasure over Bruce's established prounion stand and his protected concerted activity that day On both occasions in which Bruce engaged in protected concerted activity, Henry took reprisal action against him The proximity in time of Henry's reprisals against Bruce for engaging in protected concerted activity supports an inference that on the latter occasion, as on the first, Henry was moti- vated by union animus, and by a desire to punish Bruce for protected actions which he considered ungrateful, disloyal, and personally embarrassing Further strengthening the General Counsel's prima facie case, the action taken by Henry against Bruce for the latter's refusal to return to work was disparately severe Bruce was not the only employee who refused to return to work on that day, nor was he the only employ- ee to clock out None of the yard employees, including the union steward, returned to work when they were given work to do by Svoboda In fact, the employees did not return to work until they were told to do so by Henry Yet, Henry did not take disciplinary action against anyone other than Bruce, who had aggravated him by his proumon stance Further, two other employ- ees clocked out about the same time as Bruce, yet Henry did not take action against either of them In the case of Jerry Masadeg, who had clocked out and left the prem- ises, Henry did not so much as inquire why he had left Likewise, he took no action against David Hines, who, like Bruce, clocked out, but did not leave, and returned to work when ordered to do so by Henry Bruce and Hines' actions on that day were essentially identical, yet Henry terminated Bruce's employment, but did nothing to Hines The obviously disparate treatment cannot be explained by the fact that Bruce verbally told Svoboda he would not return to work Irrespective of whether they verbalized their refusal to return to work, the fact of the matter is that the other yard employees refused to return to work Their conduct, in that regard, was no different than that of Bruce There being little of signifi- cance to distinguish Bruce's actions from those of his co- workers, except that he acted as spokesman for his co- workers, it may be inferred that Henry singled Bruce out for punishment because he acted as spokesman, and Henry wanted to make an example out of him Since Bruce's actions in requesting Svoboda to give the employees the day off were protected," I find that the General Counsel has presented a prima facie case to support the allegation that Bruce's discharge on May 23, 1986, violated Section 8(a)(1) and (3) of the Act The Respondent, for its part, has failed to demonstrate that it would have taken the same action against Bruce in the absence of his protected conduct Henry's claim that he had no personal reason for letting Bruce go, and that he terminated Bruce's employment only because this was Bruce's third problem and it was the Company's policy to let employees go after their third problem, is not sub- stantiated by the record A careful review of the record clearly shows that Henry harbored considerable resentment towards Bruce While much of that resentment may have resulted from the breakup of Henry's mamage, and his feeling that Bruce had taken advantage of his relationship to Henry, 2 4 It is clear that at least part of the reason for Henry's resentment was Bruce's proumon views and his protected activities Respondent has failed to present any evidence that Bruce's unprotected remark weighed more heavily in Henry's mind in making his decision to terminate Bruce's employment than Bruce's protected activity in acting as spokesman to his coworkers There is credible evidence that Henry was angry when he addressed the employees and told them to go back to work The circumstances strongly suggest that what angered Henry on that occa- sion was the fact that the yard employees had not re- turned to work and were asking for the day off Bruce, to his misfortune, stood out as the spokesman for the em- ployees on that day, and Henry took out his anger against Bruce That is plainly shown by the fact that Henry took no action at all against the rest of the em- ployees who had not returned to work after the lunch- break, nor did he take any action against the other two employees who had clocked-out, for no different reason than Bruce, insofar as Henry knew Clearly, under the conditions which prevailed at that time, Bruce would not 23 Bruce's remark to the effect that he did not have to work that day, the next day, or ever, while not protected, was not so provocative or of- fensive as to serve as a reason for denying him the protection of Section 7 of the Act for his protected activity 24 The question of whether or not Henry may have been justified in feeling that Bruce, and his relatives, including Henry's wife, had taken advantage of him is Irrelevant Rather, assuming that Henry did have personal reasons for terminating Bruce's employment, the relevant ques- tion is simply whether or not he would have taken the same action even in the absence of Bruce's protected conduct 304 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD have been effectively discharged by Henry except for his protected actions. Henry's contention that he had no choice but to termi- nate Bruce's employment, because it was company policy to let employees go after three disciplinary prob- lems, is not supported by the record. Respondent offered no evidence to corroborate Henry's claim that the Com- pany had such a policy. There was, for example, no evi- dence that the Company had stated the policy in an em- ployee handbook, or had made the employees aware of the policy in any other fashion. So far as can be ascer- tained from this record, if the Company had such a policy at all, it was one of convenience, which it used selectively when it suited its purposes. That Henry, acting for the Respondent, may have had more than one reason for terminating Bruce's employ- ment is not sufficient to rebut the General Counsel's prima facie case. There is no evidence that Henry gave greater weight to any of his other reasons for terminat- ing Bruce's employment than to Bruce's protected con- duct, which angered Henry. In the absence of showing that Henry gave greater weight to some other reason for terminating Bruce's employment than his protected con- duct, Respondent has failed to show by a preponderance of the evidence that the same action would have taken place even if the absence of the protected conduct. Roure Bertrand Dupont, supra, 271 NLRB at 444. Since Respondent has failed to demonstrate by a pre- ponderance of the evidence that it would have taken the same action even in the absence of Bruce's protected conduct, I find that the Respondent has failed to satisfy its burden under Wright Line, and, therefore, its termina- tion of Bruce's employment violated Section 8(a)(1) and (3) of the Act. CONCLUSIONS OF LAW 1. Respondent, Dougherty Lumber Company, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. By threatening the Charging Party, Michael F. Bruce, in or about April 1986, because he had engaged in protected concerted activity, Respondent interfered with, restrained, and coerced him in the exercise of rights guaranteed him by Section 7 of the Act and thereby en- gaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. By discharging Michael F. Bruce on or about May 23, 1986, because he had engaged in protected concerted activity, Respondent interfered with, restrained, and co- erced him in the exercise of rights guaranteed him by Section 7 of the Act and thereby engaged in unfair labor practices within the meaning of Section 8(a)(1) and (3) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent, Dougherty Lumber Company, has engaged in certain unfair labor practices, I find that the Respondent must be ordered to cease and desist and to take certain affirmative action to effectuate the policies of the Act. Respondent, having engaged in certain unfair labor practices in violation of Section 8(a)(1) and (3) of the Act, shall be ordered to cease and desist from engaging in these unfair labor practices. Respondent, having violated Section 8(a)(1) and (3) of the Act by indefinitely laying off and/or discharging its employee, Michael F. Bruce, on or about May 23, 1986, because he engaged in protected concerted activity, shall offer Michael F. Bruce immediate and full reinstatement to his former job, and if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights and privileges previously enjoyed, and shall make him whole for any loss of earn- ings or other benefits which he may have suffered as a result of his unlawful indefinite layoff and/or discharge, less any net interim earnings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the Retarded, 283 NLRB 1173 (1987).25 Respondent shall remove from its records any refer- ence to the unlawful indefmite layoff and/or discharge, and shall provide written notice of such removal to Mi- chael F. Bruce, and inform Michael F. Bruce that the unlawful conduct will not be used as a basis for future personnel actions concerning him. See Sterling Sugars, 261 NLRB 472 (1982). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed" ORDER The Respondent, Dougherty Lumber Company, Cleveland, Ohio, its officers, agents, representatives, suc- cessors, and assigns, shall 1. Cease and desist from (a) Threatening employees with loss of overtime work, privileges, or benefits for supporting any union or engag- ing in other protected concerted activities. (b) Laying off or terminating employees because they act together for mutual aid or protection or engage in other protected concerted activities. (c) In any other manner interfering with, restraining, or coercing employees in the exercise of the rights guar- anteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Offer Michael F. Bruce immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position, without prej:- 25 In accordance with the Board's decision in New Horizons for the Re- tarded, supra, 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 amendments to 26 U.S.C. § 622. Interest accrued before January 1, 1987, shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). 26 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. ' DOUGHERTY LUMBER CO 305 udice to his seniority or any other rights or pnvileges previously enjoyed, and make him whole for any loss of earnings and other benefits suffered as a risult of the dis- cnmmation against him, in the manner set forth in the remedy section of the decision (b) Remove from its files any reference to the unlawful indefinite layoff and/or discharge and notify the employ- ee in wntmg that this has been done and that the indefi- nite layoff and/or 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) Post at its facility in 'Cleveland, Ohio, copies of the attached notice marked "Appendix " 27 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent's 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 27 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"