Camaco Lorain Mfg. Plant

CAMACO LORAIN MFG. PLANT 353 NLRB No. 64 605 Camaco Lorain Manufacturing Plant and United Automobile, Aerospace and Agricultural Im- plement Workers of America, UAW, Region 2B. Case 8–CA–36785 December 18, 2008 ORDER REMANDING BY CHAIRMAN SCHAUMBER AND MEMBER LIEBMAN On May 2, 2007, Administrative Law Judge Keltner W. Locke issued the attached bench decision and certifi- cation. The General Counsel filed exceptions and a sup- porting brief, and the Respondent filed an answering brief. The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to remand this case to the judge for further findings, analysis, and conclusions consistent with this Order Remanding.1 The complaint alleges that the Respondent violated Section 8(a)(1) by interrogating employees Raphy Var- gas2 and Alejandro Velazquez about their union activities and by creating the impression that those activities were under surveillance. The complaint further alleges that the Respondent violated Section 8(a)(3) and (1) by sus- pending employee Samuel Serrano and then discharging him. The judge dismissed each of those allegations. In exceptions, the General Counsel contends that the judge made key factual errors in reporting the testimony, that he offered minimal support for his credibility deter- minations, and that his legal analysis is not consistent with the record. Based on our review of the record, we find merit to aspects of the General Counsel’s exceptions and shall remand this proceeding to the judge for further examination and a written decision.3 1 Effective midnight December 28, 2007, Members Liebman, Schaumber, Kirsanow, and Walsh delegated to Members Liebman, Schaumber, and Kirsanow, as a three-member group, all of the Board’s powers in anticipation of the expiration of the terms of Members Kir- sanow and Walsh on December 31, 2007. Pursuant to this delegation, Chairman Schaumber and Member Liebman constitute a quorum of the three-member group. As a quorum, they have the authority to issue decisions and orders in unfair labor practice and representation cases. See Sec. 3(b) of the Act. In light of our determination to remand this proceeding, we defer ruling on the remaining issues presented in the exceptions and briefs that do not require remand. 2 The judge incorrectly referred to this employee as “Argas.” 3 We question whether this case was suitable for a bench decision. Although the determination of whether to issue a bench decision is within the trial judge’s informed discretion, the Board has provided guidance concerning the kinds of cases in which a bench decision may be appropriate. See Division of Judges Bench Book, Sec. 12-620, citing Proposed Board Guidelines on Bench Decisions, 59 Fed.Reg. 65, 942–965, 943 (Dec. 22, 1994), adopted as a final rule, 61 Fed.Reg. 6940 (1996), codified at 29 CFR §102.35. Moreover, the Board has Alleged Interrogation and Creation of the Impression of Surveillance On April 25, 2006,4 six of the Respondent’s employ- ees, including employees Vargas and Velazquez, met with a union organizer at a restaurant in Lorain, Ohio, where the Respondent’s facility is located. The next day, Supervisor Lewie Jones approached Vargas and asked, “How was the meeting yesterday?” Vargas replied, “I don’t know what meeting you’re talking about.” That same day, Jones asked Velazquez, “How was the meet- ing?” 5 Velazquez did not respond to Jones’ question. The judge found that Jones did not unlawfully interro- gate Vargas or Velazquez, and that Jones’ questions did not create the impression that their union activities were under surveillance. Regarding the interrogation allega- tion, the judge applied Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). Rossmore House directs the Board to consider whether, in light of all of the circumstances, the questioning would have reasona- bly tended to coerce the employee in the exercise of rights protected by Section 7 of the Act. Relevant factors include whether the employer had previously shown hos- tility to protected conduct, the nature of the information sought, the identity of the questioner, the place and method of interrogation, and the truthfulness of the em- ployee’s reply. See Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), cited with approval in Rossmore House, supra at 1178 fn. 20. The judge found that all of those factors weighed against finding that Jones’questions were unlawful. With respect to the truthfulness factor, the judge found that the employees’ replies—one a denial and the other silence—weighed against finding the questioning unlaw- ful. However, there is no evidence that either Vargas or Velazquez was an open union adherent. As the General Counsel points out, the Board has held that employee issued remand orders in cases where a bench decision failed to ade- quately set forth a rationale or to address necessary issues. See, e.g., Dynatron/Bondo Corp., 326 NLRB 1170 (1998) (remanding proceed- ing for a written analysis of all of the issues presented in the case be- cause bench decision lacked sufficient rationale); Jobsite Staffing, 340 NLRB 332 (2003) (remanding case in part and severing remaining issues because bench decision failed to make particularized factual findings or to discuss or analyze relevant evidence). Because disposi- tion of the complaint allegations in this case requires resolution of conflicting testimony and making detailed credibility determinations and factual findings, a fully developed written decision is necessary for meaningful review. 4 All dates are in 2006, unless stated otherwise. 5 The judge incorrectly stated that Jones questioned Velazquez after he returned from the union meeting. Velazquez, the only witness who testified regarding the conversation, stated that Jones questioned him the next day. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606 efforts to conceal their sentiments (i.e., a lack of truthful- ness) in response to employer questioning about union activity actually supports a finding that the questioning was coercive. Bourne, supra at 48; see also Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007) (questioning was coercive, in part, because job applicants sought to conceal their support for the union); accord: Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003). The judge should address that precedent on re- mand. In addition, the judge found that Vargas and Velazquez reasonably would have interpreted Jones’ questions as a joke, because employees had joked about the union meeting. Based on that finding, the judge also found that the employees would not have inferred from Jones’ ques- tions that their union activities were under surveillance. The judge found that Jones’ credibly testified that some employees had joked about the Union. In fact, however, Jones named only one such employee: employee Dan- ielle Harris. Jones did not testify, and there appears to be no other record evidence suggesting that Vargas or Velasquez (or anyone other than Harris) had ever joked with Jones about union meetings. Moreover, Vargas, whom the judge appears to have credited, expressly testi- fied that Jones did not question him in a joking manner. The judge does not address this contrary testimony. We therefore remand the interrogation and impression of surveillance allegations to the judge for further analysis. Suspension of Samuel Serrano On May 25, employee Samuel Serrano allegedly made a threatening statement to Leadman Frank Dellipoala about Supervisor Jones: that Jones “was going to pay.” On May 30, after investigating the incident, the Respon- dent suspended Serrano for 3 days.6 The judge found that the Respondent’s suspension of Serrano was not unlawful. Applying Wright Line,7 the 6 The judge incorrectly stated that Serrano was suspended for 1 day. 7 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). To establish a violation under Wright Line, the General Counsel bears the burden of showing that union ani- mus was a motivating or substantial factor for the adverse employment action. The elements commonly required to support such a showing are union or protected concerted activity by the employee, employer knowledge of that activity, and union animus on the part of the em- ployer. See, e.g., Consolidated Bus Transit, Inc., 350 NLRB 1064, 1065 (2007); Desert Springs Hospital Center, 352 NLRB 112 (2008). Chairman Schaumber notes that the Board and the circuit courts of appeal have variously described the evidentiary elements of the General Counsel’s initial burden of proof under Wright Line, sometimes adding as an independent fourth element the necessity for there to be a causal nexus between the union animus and the adverse employment action. See, e.g., American Gardens Management Co., 338 NLRB 644, 645 (2002). As stated in Shearer’s Foods, 340 NLRB 1093, 1094 fn. 4 judge concluded that the General Counsel did not estab- lish that Serrano’s protected activities were a motivating factor in his suspension. The judge found employer knowledge of Serrano’s activities and assumed, for the sake of analysis, that those activities were protected. He found, however, that the evidence did not establish that the Respondent harbored animus toward Serrano’s activi- ties. The judge further found that, assuming the General Counsel met the initial Wright Line burden, the Respon- dent demonstrated that it would have suspended Serrano even in the absence of his protected activity. Here, too, we are troubled by aspects of the judge’s analysis, par- ticularly with respect to the issue of unlawful motivation. First, although the judge found that Human Resources Manager Karin Mayfield did not take account of Serrano’s protected activities, Mayfield testified that the discipline of Serrano was a “team” decision, rather than hers alone. It appears from the record that Jones (who allegedly interrogated Vargas and Velazquez) may have been instrumental in that decision. Furthermore, al- though the judge concluded that the Respondent was aware of Serrano’s protected activities, he did not ad- dress whether that knowledge was imputable to any of those who participated in the decision to suspend Serrano. The judge should address those issues on re- mand. Second, in finding that the General Counsel failed to establish a link between Serrano’s protected activities and his suspension, the judge determined that the record contained no evidence of animus other than Jones’ ques- tions to employees about the union meeting, which he found to be lawful. As discussed above, we are remand- ing that finding for further analysis. In addition, the judge did not discuss other record evidence pertinent to the issue of unlawful motivation. For example, the tim- ing of Serrano’s suspension may be probative of unlaw- ful motivation. See Real Foods Co., 350 NLRB 309, 311 (2007) (the suspicious timing of an adverse employment action in relation to protected activity can support an inference of unlawful motivation); Davey Roofing, Inc., 341 NLRB 222, 223 (2004) (same). Jones testified that Serrano had started out as one of his favorite employees, but in early spring of 2006—that is, shortly after Serrano contacted the Union— “the tables turned.” Jones also testified that “knowing I’d given [Serrano] good evalua- tions and whatnot in the past, and now all of a sudden the guy’s turning on you like a pit bull, I knew I had to start getting some documentation.” Given the timing of Jones’ change in attitude toward Serrano, the judge (2003), since Wright Line is a causation standard, Chairman Schaumber agrees with this addition to the formulation. CAMACO LORAIN MFG. PLANT 607 should have addressed whether there was any link be- tween that change and Serrano’s union activity. Third, the record establishes, and the judge found, that Jones could be a difficult supervisor, and that, on at least one occasion, a group of employees complained to May- field about Jones’ treatment of the employees. The judge’s decision, however, does not mention undisputed evidence that Serrano met with Mayfield about Jones’ treatment of employees earlier on the very day that Jones initiated the discipline of Serrano. The General Counsel contends that the record supports an inference that Serrano’s protected complaints to Mayfield played a role in Jones’ decision to recommend discipline against Serrano. Given the judge’s failure to even discuss the issue, we are unable to properly assess the merits of the General Counsel’s exception on that point. Fourth, the judge’s decision suggests that leadman Frank Dellipoala reported Serrano’s alleged threat to Human Resources Manager Mayfield. The record, how- ever, appears to show that it was actually Jones who re- ported the incident to Mayfield, after he heard about Serrano’s statement from Dellipoala. Mayfield’s file notes indicate that Jones told her that Serrano had threat- ened him and that he was gathering evidence to terminate Serrano. The difference may be significant. If, in reex- amining the evidence, the judge finds that it was Super- visor Jones, not Dellipoala, who reported Serrano’s al- leged threat, then the judge should also reexamine his finding regarding the Respondent’s affirmative defense that Serrano would have been disciplined even in the absence of his protected activities. Finally, although not discussed by the judge, the re- cord indicates that Jones did not report a similar, con- temporaneous threat by another employee. Employee Daniel Clarkston testified without contradiction that, shortly after the Respondent suspended Serrano, Clark- ston told Jones that he was going to punch Human Re- sources Manager Mayfield. Jones, however, did not re- port Clarkston’s threat or otherwise initiate disciplinary action against him. There is no indication whether the judge considered Clarkston’s testimony, or whether Jones’ apparently differing treatment of Serrano and Clarkston undercuts the Respondent’s affirmative de- fense or supports a finding of unlawful motivation. While the judge suggested that Serrano’s eccentric be- havior would have caused the Respondent to take his threat seriously, he did not explain that conclusion, how- ever, or cite Serrano’s eccentric behavior to distinguish his situation from Clarkston’s. In sum, the bench decision’s analysis of Serrano’s sus- pension reflects apparent material factual errors and omissions, unresolved credibility determinations, and an oversight of relevant record evidence. Accordingly, we are unable to evaluate the merits of the General Coun- sel’s exceptions regarding this complaint allegation, and shall remand the issue to the judge for a more complete analysis. Discharge of Samuel Serrano In late August, General Manager Mike Allen intro- duced an incentive program designed to increase produc- tion at the Respondent’s facility. According to the judge’s decision, during a meeting at which Allen intro- duced the incentive program to the employees, Serrano stated that he was not willing to make the effort required for the program to succeed. The judge found that, as- suming the General Counsel met his initial Wright Line burden, the Respondent nevertheless demonstrated that it would have discharged Serrano even in the absence of his protected activities for his stated unwillingness to perform. The judge reasoned that, although Serrano had previously engaged in protected concerted activity when he “join[ed] with another employee to protest the pro- gram,”8 Serrano “spoke for himself when he expressed unwillingness to try to meet the production standard.” The judge concluded that because the Respondent dis- charged Serrano for making that statement, his discharge was lawful. The General Counsel argues that the judge’s analysis is flawed because there is no evidence that Serrano made any comment about the incentive program during Gen- eral Manager Allen’s meeting to introduce the program. Nor is there evidence that Allen was involved in the postmeeting discussion where Serrano expressed his complaints about the new program to other employees. See footnote 8, supra. Having carefully reviewed the record, it appears that the General Counsel’s assertions are correct. Accordingly, in light of this factual error, the judge should reassess his analysis with respect to the Serrano discharge allegation. Allen did not testify that Serrano criticized the incen- tive program during a meeting, much less the one at which the program was introduced to employees. Rather, Allen testified that he terminated Serrano be- cause of comments that Serrano made when Allen ap- proached him on the production floor to ask him why he 8 The judge’s finding in that regard is an apparent reference to record testimony that, after Allen’s meeting, Serrano and at least three other employees met privately and discussed equipment-related and other problems they would face in meeting the new production targets. Be- cause the judge did not address any of the testimony pertaining to that conversation, we are unable to evaluate what role, if any, the conversa- tion played in Serrano’s discharge. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608 was unable to meet the target production rate.9 Accord- ing to Allen, Serrano replied that he was not going to “bust his butt,” and that it “wasn’t worth a buck more an hour.” Allen testified that he decided to terminate Serrano later that day. In addition to this factual error, the judge failed to discuss, or make any credibility find- ings with respect to, the testimony of Serrano or the other employees present during Allen’s conversation with Serrano. In the absence of detailed factual findings and credibil- ity resolutions, we are unable to resolve the General Counsel’s exceptions to the judge’s finding that the Re- spondent lawfully discharged Serrano. Accordingly, we shall remand the case to the judge so that he may recon- sider the record evidence, make credibility determina- tions, and provide an analysis explaining the basis for his findings. Conclusion We remand this proceeding to the judge with the fol- lowing instructions: The judge shall afford the parties an opportunity to file briefs addressing the remanded is- sues,10 reexamine the record in this case, and provide a written decision addressing each of the contested com- plaint allegations. The decision shall specifically set forth credibility determinations regarding all of the rele- vant record testimony, a complete and accurate statement of the relevant facts pertaining to each issue, and a new legal analysis of each issue. In remanding this case, we express no opinion as to the correctness of the judge’s original disposition of the merits of the contested com- plaint allegations. ORDER IT IS ORDERED that this proceeding is remanded to Administrative Law Judge Keltner W. Locke for further action consistent with this Order. IT IS FURTHER ORDERED that the judge shall afford the parties an opportunity to file briefs addressing the re- manded issues, and shall prepare and serve on the parties a supplemental decision setting forth credibility resolu- tions, findings of fact, conclusions of law, and a recom- mended Order, as appropriate on remand. Copies of the supplemental decision shall be served on all parties, after which the provisions of Section 102.46 of the Board’s Rules and Regulations shall be applicable. 9 Mayfield’s file notes indicate that this conversation occurred 2 days after Allen’s meeting to introduce the incentive program. 10 See Des Moines Register & Tribune Co., 339 NLRB 1035 fn. 1 (2003), review denied sub nom. Des Moines Mailers Local 358 v. NLRB, 381 F.3d 767 (8th Cir. 2004). Cheryl Sizemore, Esq., for the General Counsel. Richard R. Mellott Jr., Esq. (Trigillo & Stephenson, P.L.L.), of Lorain, Ohio, for the Respondent. BENCH DECISION AND CERTIFICATION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. I heard this case on March 13 and 14, 2007, in Cleveland, Ohio. On March 15, 2007, after the parties rested, I heard oral argument, and on March 16, 2007, issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and Regulations, setting forth findings of fact and conclusions of law. In accordance with Sec- tion 102.45 of the Rules and Regulations, I certify the accuracy of, and attach hereto as “Appendix A,” the portion of the transcript containing this decision.1 Additional analysis, conclusions of law, and Order are set forth below. Additional Analysis In the present case, a supervisor testified that when he asked employees about attending a “meeting” (meaning a union meet- ing), he was joking. As Administrative Law Judge Scully ob- served in Nicholas County Health Care, 331 NLRB 970, 977 (2000), the “unlawful effect of a coercive statement is not blunted by the fact that it is accompanied by laughter or made in a humor- ous way. Meisner Electric, Inc., 316 NLRB 597, 599 (1995).” My conclusion that the supervisor did not violate the Act is con- sistent with this longstanding principle. As noted in the bench decision, the supervisor’s intent in mak- ing a statement or asking a question generally is not relevant to determining whether that statement interfered with, restrained, or coerced employees in the exercise of their Section 7 rights. Rather, the Board evaluates a statement’s potential for such coer- cion based upon what that statement reasonably would communi- cate to an employee. The “only joking” excuse fails to cleanse statements of their coercive effect because employees can still detect the threat behind the smile and be affected by it. Considering the unusual facts of this case, I have concluded not only that the supervisor actually was trying to make a joke (itself irrelevant to an 8(a)(1) finding), but also that the employees rea- sonably would understand it as such. One reason for this conclu- sion is that the employees, not the supervisor, initiated the joke. Because they originated the humor, they reasonably would be less likely to view the supervisor’s remark as a reflection of manage- ment hostility towards or improper curiosity about employees’ protected activities. It should be stressed that this analysis creates no sort of bright- line rule and that who originated the joke is only one of the factors which I considered in this rather unusual case. With respect to Respondent’s 1-day suspension of employee Sam Serrano in May 2006, I note that the record does not establish that Human Resources Director Mayfield bore any hostility to- 1 Because of minor errors not pertaining to the substance of the tes- timony, the court reporter issued a corrected version of tr. vol. 4, and then a second corrected version. The bench decision appears in uncor- rected form at pp. 563 through 585 of the second corrected transcript. The final version, after correction of oral and transcriptional errors, is attached as Appendix A to this certification. CAMACO LORAIN MFG. PLANT 609 wards Serrano or took into account his protected activities. Even though Serrano denied making the “threat” for which he received the suspension, I conclude that Mayfield believed that he had. The statement attributed to Serrano was somewhat vague, but in view of his eccentric behavior, it would be reasonable for her to be concerned about it. In the bench decision, I concluded that the General Counsel had not established the initial four elements under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. de- nied 455 U.S. 989 (1982), adding that even if the record had proven these elements, Respondent had carried its rebuttal burden of showing that it would have taken the same action in any event, even in the absence of protected activity. In general, a respondent carries this rebuttal burden with evi- dence that it had treated other, similar employees in the same way in similar situations. However, Serrano’s atypical behavior af- fected how Respondent evaluated the words attributed to him. In view of Serrano’s eccentricities, it would seem unlikely that Re- spondent previously had dealt with a similar employee under simi- lar circumstances. As the Board recently observed in International Baking Co., 348 NLRB 1133 (2006), it is not the law that an employer can prevail only by showing prior identical misconduct and discipline. Based on the present record, I conclude that had the Government established the initial four Wright Line elements, Respondent still would have carried its rebuttal burden. In reaching the conclusion that Respondent lawfully discharged Serrano, I distinguish his criticism of the Respondent’s new incen- tive program from his statement indicating that he would not make the effort for the program to succeed. Serrano’s joining with an- other employee to protest the program constituted protected, con- certed activity. However, he spoke for himself when he expressed unwillingness to try to meet the production standard. CONCLUSIONS OF LAW 1. The Respondent, Camaco Lorain Manufacturing Plant, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Charging Party, United Automobile, Aerospace and Ag- ricultural Implement Workers of America, UAW, Region 2B, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate the Act in any manner al- leged in the complaint. On the findings of fact and conclusions of law, and on the en- tire record in this case, I issue the following recommended2 ORDER The complaint is dismissed. 2 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and Regulations, these 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. APPENDIX A BENCH DECISION This decision is issued pursuant to Section 102.35(a)(10) and Section 102.45 of the Board’s Rules and Regulations. Procedural History This case began on September 18, 2006, when the United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, Region 2–B, which I will refer to as the “Union” or the “Charging Party, filed the initial charge in this case. The Union amended this charge on November 30, 2006. After an investigation, the Regional Director for Region 8 of the National Labor Relations Board issued a Complaint and No- tice of Hearing dated November 30, 2006. In doing so, the Re- gional Director acted for the General Counsel of the Board, whom I will refer to as the “General Counsel” or the “government.” The General Counsel amended the Complaint and Notice of Hearing, which I will call the “Complaint,” once before and once during the hearing. Respondent filed timely answers to the Com- plaint and its amendments. On March 13, 2007, a hearing opened before me in Cleveland, Ohio. The parties presented evidence on March 13 and 14, 2007. On March 15, 2007, counsel presented oral argument and today, March 16, 2007, I am issuing this bench decision. Admitted Allegations In its Answers to the Complaint and its amendments, Respon- dent admitted a number of allegations. Based on those admis- sions, I find as follows: The Union filed the charge and amended charges, and Respon- dent received copies of them, as alleged in paragraphs 1(A) through 1(D) of the Complaint, as amended. Respondent, a Delaware corporation with an office and place of business in Lorain, Ohio, manufactures automotive seat frames. At all material times Respondent, which meets the Board’s stan- dards for the exercise of jurisdiction, is an employer engaged in commerce within the meaning of Section 2(2), (6) and (7) of the Act. During all times relevant to the allegations in the Complaint, the following individuals were Respondent’s supervisors within the meaning of Section 2(11) of the Act and its agents within the meaning of Section 2(13) of the Act: General Manager Mike Allen, Human Resources Manager Karin Mayfield, and Supervi- sor Lewie Jones. At all material times, the Union has been a labor organization within the meaning of Section 2(5) of the Act. Contested Allegations Complaint Paragraph 6 The subparagraphs of Complaint paragraph 6 allege that in April 2006 Respondent, by its supervisor, Lewie Jones, made unlawful statements to employees, more specifically, that Jones interrogated employees about their Union activities, created the impression that the Respondent was engaged in surveillance of their Union activities, and stated that such Union activities would be futile. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610 The record establishes that some time in the first part of 2006, employee Samuel Serrano contacted the Union, receiving instruc- tions on how to organize Respondent’s production workers. Serrano and five other employees attended a meeting with the Union organizer on April 26, 2006. This meeting took place at a Denny’s restaurant in Lorain, Ohio, where Respondent’s plant is located. Employee Alejandro Velazquez testified that after he returned from this meeting, Supervisor Jones came up to where he was working and asked “How was the meeting?” Velazquez did not answer but continued to work. Jones never asked him again about any type of Union meeting, Jones denied making the statement in question. Therefore, I must determine which testimony should be credited. At the time of the hearing, Velazquez remained employed by Respondent. Therefore, it was not in his interest to give testimony which might result in a finding adverse to Respondent. That factor militates in finding Velazquez’ testimony to be credible. Respondent, however, had discharged Jones before the date of the hearing. Although Jones did not manifest any hostility to- wards his former employer, it would be reasonable to conclude that he would not be inclined to slant his testimony in favor of a company which had discharged him. Thus, any biasing effect of employment status would be about equal for both Velazquez and Jones. Therefore, it provides no basis for determining which tes- timony more likely is reliable. Similarly, my observations of the demeanor of both witnesses do not help decide which testimony to credit. Both witnesses appeared to be telling the truth. Jones particularly impressed me because of his willingness to admit when he did not know the answer to a question. In other respects, he seemed candid almost to the point of bluntness. In view of this candor, I would be reluctant to conclude that Jones untruthfully denied asking about the meeting because personal pride prompted him to conceal a possible unfair labor practice. In sum, both witnesses seemed to be reliable and any credibility resolution necessarily would entail too much guesswork for com- fort. However, a decision must be made and, for two reasons, I credit Velazquez. First, another witness, Raphy Argas, testified that Jones asked him a similar question. According to Argas, the day after the meeting, Jones approached him and asked, “How was the meeting yesterday?” Argas replied that he did not know what meeting Jones was talking about, and Jones did not say anything else. Argas also remained employed by Respondent and the record provides no reason to believe that he harbored a grudge against his employer or its management. There is no reason to doubt the truthfulness of his testimony. Second, Jones plausibly testified that because of Serrano’s per- sonality and behavior at work, there was no possibility that he would be effective in persuading others to support a union. Spe- cifically, he said that Serrano did not have the “clout” to bring in a union and that other workers regarded him as a kind of “problem child.” For reasons discussed later in this decision, I conclude that Jones was not making up an opinion about Serrano to serve his own purposes but instead honestly believed it to be the case. Whether or not other employees regarded Serrano as a “problem child,” they would have little incentive to follow him. Jones credibly testified that employees joked about Serrano’s effort to organize a union. When punching out on the time clock, some announced that it was “time to go to Denny’s.” Crediting Jones on this point, I find that some employees did joke in this manner, leading Jones also to regard it as a joke. Which is why, ultimately, I conclude that Jones did ask em- ployees how they enjoyed the meeting. It seemed to him an inno- cent joke rather than a serious attempt to discourage employees from union activity. The fact that Jones did not say “union meet- ing” but only “the meeting,” and the fact that he never again brought up the subject, leads me to conclude that his questions were about the meeting were merely an unsuccessful attempt at humor. Of course, Jones’ intent in asking the questions is irrelevant. As the Board stated in Waco, Inc., 273 NLRB 746, 748 (1984): Union animus is an element in 8(a)(3) cases, but generally is not an element in 8(a)(1) cases. “It is too well settled to brook dispute that the test of interference, restraint and coercion un- der Section 8(a)(1) of the Act does not depend on an em- ployer’s motive nor on the successful effect of the coercion. Rather, the illegality of an employer’s conduct is determined by whether the conduct may reasonably be said to have a ten- dency to interfere with the free exercise of employee rights under the Act.” [Citing Daniel Construction Co., 264 NLRB 569 (1982).] During oral argument, Respondent’s counsel addressed the test which the Board should use to determine whether an alleged interrogation reasonably would tend to interfere with, restrain, or coerce employees in the exercise of rights guaranteed by Section 7 of the Act. Specifically, Respondent cited Bourne Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964). In Rossmore House, 269 NLRB 1176 (1984), affd. sub nom. Hotel Employees Union Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), the Board applied the standards articulated by the court in Bourne. The Bourne test factors are as follows: 1. The background, i.e. is there a history of employer hostility and discrimination? 2. The nature of the information sought, e.g. did the in- terrogator appear to be seeking information on which to base taking action against individual employees? 3. The identity of the questioner, i.e. how high was he in the Company hierarchy? 4. Place and method of interrogation, e.g. was em- ployee called from work to the boss’s office? Was there an atmosphere of “unnatural formality”? 5. Truthfulness of the reply. See also Mediplex of Danbury, 314 NLRB 470, 472 (1994). Donaldson Bros. Ready Mix, Inc., 341 NLRB No. 124 [958] (May 19, 2004). With respect to the first Rossmore House factor, the record does not establish a history of employer hostility or discrimination. Although the record includes references to a previous settlement, the government did not offer any settlement agreement into evi- CAMACO LORAIN MFG. PLANT 611 dence, so it is not possible to determine whether such an agree- ment, if it exists, includes a non-admissions clause. In Painters District Council 9 (We’re Associates), 329 NLRB 140, 143 (1999), the judge noted that informal settlement agree- ments and formal settlement stipulations containing non- admission clauses cannot be used to establish a proclivity to vio- late the Act. Thus, the only type of settlement agreement that can be used to establish proclivity to violate the Act is a formal settle- ment, without a non-admission clause. See Teamsters Local Un- ion No. 122, International Brotherhood of Teamsters, AFL–CIO, 334 NLRB No. 137 [1190] (2001). The General Counsel bears the burden of proving antiunion animus, including, in the Rossmore House context, establishing a past history of employer hostility or discrimination. There is no indication that Respondent ever entered into a formal settlement without a non-admission clause. Accordingly, I conclude that the record does not establish any history of employer hostility or dis- crimination. As to the second Rossmore House factor, the record does not establish that Jones was seeking information on which to base disciplinary action. Jones was a first–line supervisor, not a member of higher man- agement. Additionally, he asked the questions in the workplace, in what might be called the “employee’s domain” rather than in a locus of authority. Thus, the third and fourth Rossmore House factors also militate against a finding of coercive interrogation. The fifth factor concerns the employee’s reply. One of the em- ployees, Velazquez, just kept working and did not respond. The other denied knowing what Jones was talking about, and Jones did not try to explain. In sum, all of the Rossmore House factors point against finding a violative interrogation. Therefore, I recommend that the Board dismiss these allegations. Complaint paragraph 6 also alleges that Jones’ questions cre- ated the impression of surveillance and that Jones communicated to employees that union efforts would be futile. Even in the ab- sence of any evidence that Jones mentioned any union when he spoke with Velazquez and Argas, it would still be possible to find that questions created the impression of surveillance if employees reasonably understood him to be asking about a Union meeting and if, in context, the employees reasonably would interpret the questions to convey an intent to spy on their union activities. However, I credit Jones’ testimony that the employees regarded Serrano’s attempts as a joke, and conclude that they reasonably would understand Jones to have been joking. It is true, of course, that a statement can violate Section 8(a)(1) even if offered as a joke. In the unusual circumstances of the present case, however, and particularly considering that employees themselves had joked about the matter when they clocked out, I do not conclude that employees reasonably would infer from Jones’ questions that Respondent really was placing their union activity under surveil- lance. Another employee, Andre Vinson Cheers, testified that the day after the meeting at Denny’s, Supervisor Jones asked him how the meeting went. Also, according to Cheers, Jones requested that Cheers work late and then told him, “You’re smarter than Sam [Serrano]. You’ve been around here longer than him.” According to Cheers, Jones added that there was not going to be a union in the plant, that employees tried it before “and people got fired.” However, I do not credit Cheers’ testimony, which Jones de- nied. Respondent had discharged him and resentment over that termination would incline him, if anything, to bend his testimony in a way that hurt Respondent. Jones also had been discharged, but testified in a way that did not offer him any satisfaction of revenge. Moreover, Jones could be an abrasive supervisor if he became dissatisfied with an employee’s work efforts. For all these rea- sons, I do not believe Cheers’ testimony is as reliable as that given by Jones. Because I credit Jones’ denials, I recommend that the Board dismiss the allegations that Respondent told employees that at- tempts to unionize would be futile. In sum, I recommend that the Board dismiss all the allegations raised by Complaint paragraph 6. The 8(a)(3) Allegations The 8(a)(3) allegations concern a one–day suspension which Serrano received in late May 2006 and his discharge on August 23, 2006. Serrano began work for Respondent as a production employee in 2004 and initially received good evaluations and raises. His supervisor, Lewie Jones, credibly testified that at some point Serrano changed. The record does not establish whether Serrano displayed eccen- tric behavior from the outset of his employment or whether his conduct became more bizarre over time, but there is no doubt that he behaved in ways different from other employees. For example, at one point during his testimony, Supervisor Jones testified that Serrano sometimes hopped around the factory instead of walking. When Jones gave this testimony, Serrano was sitting beside counsel for the General Counsel at the counsel’s table. After Jones described the hopping, Serrano smiled, or per- haps grinned would be a better description, and nodded his head affirmatively. Regarding work performance, Jones credibly testified that Serrano was, in effect, a good worker when he wanted to be, par- ticularly when Jones was around. However, Jones then cited the expression about when the “cat was away the mice will play,” to indicate that Serrano’s work became less productive in the super- visor’s absence. As already noted, Jones could be a difficult supervisor, and on at least one occasion, a number of employees complained to the human resources director about how Jones had treated them. Serrano frequently complained to the human resources director about Jones and, for the sake of analysis, I will assume that he was complaining on behalf of other employees as well as himself, making his complaints protected concerted activity, In late May 2006, a lead man, Frank Dellipoala, reported to the human resources director that he had seen Serrano throwing his hands up and down in the air while standing by a machine. Ac- cording to Dellipoala asked Serrano what was wrong, Serrano said that he wasn’t going to complain any more to the human resources director. Dellipoala quoted Serrano as saying words to the effect that he was “about to go off. This may be his domain in here, but DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612 it’s mine out there. Lewie is going to pay.” Serrano vehemently denied making this comment. However, the human resources director suspended Serrano for one day. Serrano’s own testimony establishes that when the hu- man resources director told him of this suspension, Serrano fell to the floor, grabbed his stomach, and told the human resources di- rector that she had hurt him. He explained that he did so as a means of dramatizing his feelings. Indeed, Serrano’s demeanor while testifying was at least dra- matic, and sometimes verging on the theatrical. This apparent partisanship called his credibility into question. There is no doubt that he engaged in unconventional behavior, such as doing what another witness called “the gator,” meaning lying on the floor and writhing to make a point. In analyzing whether Serrano’s one day suspension violated the Act, I will apply the standards articulated by the Board in Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982). Under Wright Line, the General Counsel must establish four elements by a preponderance of the evidence. First, the government must show the existence of activ- ity protected by the Act. Second, the government must prove that Respondent was aware that the employees had engaged in such activity. Third, the General Counsel must show that the alleged discriminatees suffered an adverse employment action. Fourth, the government must establish a link, or nexus, between the em- ployees’ protected activity and the adverse employment action. More specifically, the General Counsel must show that the pro- tected activities were a substantial or motivating factor in the deci- sion to take the adverse employment action. See, e.g., North Hills Office Services, Inc, 346 NLRB No. 96 [1099] (April 28, 2006). In effect, proving these four elements creates a presumption that the adverse employment action violated the Act. To rebut such a presumption, the respondent must persuade by a prepon- derance of the evidence that the same action would have taken place even in the absence of the protected conduct. Wright Line, 251 NLRB 1083, at 1089; Hyatt Regency Memphis, 296 NLRB 259, 260 (1989), enfd. in relevant part 939 F.2d 361 (6th Cir. 1991). See also Manno Electric, Inc., 321 NLRB 278, 280 at fn. 12 (1996). For the sake of analysis, I will assume that Serrano’s activities were protected. Clearly, Respondent knew about them. Addi- tionally, there is no doubt that a one–day suspension constitutes an adverse employment action. However, I conclude that the evidence falls short of establish- ing a nexus between the protected activities and the suspension. The only evidence of animus consists of Jones’ statements, al- ready discussed, pertaining to the Union meeting. I have con- cluded that they did not violate the Act. Moreover, they do not otherwise establish a hostility which would result in a one–day suspension a month later. Accordingly, I conclude that the government has not carried its burden. However, even if the General Counsel had proven all 4 Wright Line elements, I would find that Respondent would have taken the same action in any event. Considering Serrano’s uncon- ventional behavior, his statement about Jones “going to pay” would be taken seriously. Accordingly, I conclude that the suspension did not violate the Act. In August 2006, Respondent’s general manager, Mike Allen, implemented a team incentive system based on Japanese man- agement practices. If a team made a certain production rate, 60 pieces per hour, then all members of the team would receive a dollar an hour bonus. Based upon my observations, I credit Allen’s testimony. I con- clude that during a meeting at which Allen explained this pro- gram, Serrano said he did not intend to make the extra effort needed to comply. After considering this comment, Allen decided to discharge Serrano because his unwillingness to make the effort kept the program from being effective. It also hurt the other members of the team. Assuming that Serrano’s complaints about the program were protected, I would conclude that the government has established the initial 4 Wright Line elements. However, I would further con- clude that Respondent has proven that it would have discharged Serrano in any event for his unprotected statement that he would not make the effort required for the program to be a success. The unique nature of this team program required every em- ployee on a team to be dedicated to making the goal. An ex- pressed unwillingness to do the work doomed the program to failure from the start. In sum, I conclude that Respondent did not act unlawfully in any manner alleged in the Complaint. Accordingly, I recommend that the Board dismiss the Complaint in its entirety. When the transcript of this proceeding has been prepared, I will issue a Certification which attaches as an appendix the portion of the transcript reporting this bench decision. This Certification also will include provisions relating to the Findings of Fact, Conclu- sions of Law, Remedy, Order and Notice. When that Certification is served upon the parties, the time period for filing an appeal will begin to run. Throughout this proceeding, counsel for both parties have dem- onstrated great civility and professionalism which did expedite this proceeding tremendously. That civility and professionalism has been noted and appreciated. The hearing is closed.