Camaco Lorain Manufacturing Plant

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 356 NLRB No. 143 1182 Camaco Lorain Manufacturing Plant and United Au- tomobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, Region 2-B. Case 8–CA–36785 April 29, 2011 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS BECKER AND HAYES On September 28, 2009, Administrative Law Judge Keltner W. Locke issued the attached supplemental deci- sion.1 The General Counsel filed exceptions and a sup- porting brief.2 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the supplemental decision and the record in light of the exceptions and brief and has decided to affirm the judge’s rulings, findings,3 and con- clusions only to the extent consistent with this Supple- mental Decision and Order. The judge discredited the testimony of employee An- dre Cheers. Having affirmed the judge’s credibility find- ings, we adopt the judge’s findings that the Respondent did not violate Section 8(a)(1) by coercively interrogat- ing Cheers, creating the impression that his union activi- ties were under surveillance, or threatening him that em- ployees’ union activities were futile. For the reasons stated below, however, we reverse the judge’s supple- mental decision and find that the Respondent violated Section 8(a)(1) by coercively interrogating employees Alejandro Velazquez and Raphy Vargas, creating the impression that Velazquez’s and Vargas’ union activities 1 On May 2, 2007, Judge Locke issued a bench decision and certifi- cation in this case, recommending that the complaint be dismissed. On December 18, 2008, the two sitting members of the Board issued an order remanding the case to Judge Locke for further findings, analysis, and conclusions. 353 NLRB 605 (2008). In their order, the members instructed the judge, among other things, to provide “a new legal analy- sis of each issue.” They expressed no opinion as to the merits of the contested complaint allegations. Id. at 608. Having considered the matter, as a three-member panel, we reaffirm the earlier decision to remand the case. 2 There are no exceptions to the judge’s finding that the Respondent violated Sec. 8(a)(3) and (1) by suspending employee Sam Serrano on May 25, 2006, because of his union support and activities. 3 The General Counsel has excepted to some of the judge’s credibil- ity findings. The Board’s established policy is not to overrule an ad- ministrative law judge’s credibility resolutions unless the clear prepon- derance of all the relevant evidence convinces us that they are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing the findings. were under surveillance, and discharging Serrano be- cause he engaged in protected concerted activity.4 I. INTERROGATIONS In the spring of 2006,5 there was a short-lived effort, led by Serrano, to organize the Respondent. As part of that effort, several employees, including Velazquez and Vargas, attended a union meeting at a local restaurant. The next morning, Supervisor Lewie Jones asked Ve- lazquez, “How was the meeting?” Velazquez did not respond. Jones asked Vargas, “How was the meeting yesterday?” Vargas responded that he did not know what meeting Jones was talking about. These encounters took place on the production floor. Neither Velazquez nor Vargas had attended any other meeting the previous day, either at or away from the workplace. Further, there is no evidence that either was an open union adherent. In assessing the lawfulness of an interrogation, the Board applies the totality of circumstances test adopted in Rossmore House, 269 NLRB 1176, 1178 fn. 20 (1984), affd. sub nom. HERE Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985). This test involves a case-by- case analysis of various factors, including those set out in Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964): (1) the background, i.e., whether the employer has a history of hostility toward or discrimination against union activity; (2) the nature of the information sought, i.e., whether the interrogator appears to have been seeking information on which to base taking action against individual employ- ees; (3) the identity of the interrogator, i.e., his or her placement in the Respondent’s hierarchy; (4) the place and method of the interrogation; and (5) the truthfulness of the interrogated employee’s reply. As to the fifth fac- tor, employee attempts to conceal union support weigh in favor of finding an interrogation unlawful. See, e.g., Sproule Construction Co., 350 NLRB 774, 774 fn. 2 (2007); Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003), affd. mem. 121 Fed. Appx. 720 (9th Cir. 2005). The Board also considers whether the inter- rogated employees are open and active union supporters. See, e.g., Gardner Engineering, 313 NLRB 755, 755 (1994), enfd. as modified on other grounds 115 F.3d 636 (9th Cir. 1997). These factors “are not to be mechanical- ly applied”; they represent “some areas of inquiry” for consideration in evaluating an interrogation’s legality. Rossmore House, supra, 269 NLRB at 1178 fn. 20. 4 The General Counsel alleged that the Respondent discharged Ser- rano because he engaged in union and/or protected concerted activities, in violation of Sec. 8(a)(3) and (1). As stated above, we conclude that Serrano’s discharge violated Sec. 8(a)(1). We find it unnecessary to pass on the 8(a)(3) allegation because such a finding would not materi- ally affect the remedy. 5 All dates refer to 2006 unless otherwise indicated. CAMACO LORAIN MFG. PLANT 1183 Applying these factors, the judge found that there was no history of employer hostility toward or discrimination against union activity, and that Jones did not appear to be seeking information on which to base disciplinary action. The judge found that Jones’ status as a “first-line super- visor” and the fact that he questioned Velazquez and Vargas on the production floor also supported dismissal. The judge acknowledged that the employees’ “reluctance to disclose whether they attended a union organizing meeting” weighed in favor of finding the interrogations coercive, but he found this factor insufficient standing alone to render Jones’ questioning unlawful. Thus, the judge concluded that the interrogations were lawful. We disagree. Regarding the interrogator’s identity, Jones was a stat- utory supervisor. He possessed authority to evaluate employees and to determine who would get wage in- creases. Importantly, there was no level of supervision or management between floor supervisors like Jones and the Respondent’s general manager, Mike Allen. The Board has found questioning undertaken by supervisors similarly situated to Jones to be unlawful. Moreover, the location of the interrogation—the employees’ work area on the production floor—added to its coercive tendency in the circumstances of this case. Absent evidence that Jones had an office or other formal “locus of authority” at the plant, the production floor was his “locus of au- thority.” Jones used his authority on the production floor to probe employees’ union activities with questions about their attendance at a union meeting outside the workplace. The Board has found interrogations unlawful under similar circumstances. See, e.g., Central Valley Meat Co., 346 NLRB 1078, 1087 (2006) (finding unlaw- ful an interrogation by a department foreman on the “kill floor” of a slaughterhouse ). Finally, Velazquez’s and Vargas’ reactions to Jones’ questions evince the coercive nature of the questioning. As stated, neither Velazquez nor Vargas was an open union supporter. See Gardner Engineering, supra, at 755. When questioned, Velazquez remained silent and Vargas responded untruthfully. The judge acknowledged that their attempts to continue to conceal their support of the Union weigh in favor of finding the questioning un- lawful. See Sproule Construction Co., supra, 350 NLRB at 774 fn. 2; Grass Valley Grocery Outlet, supra, 338 NLRB at 877 fn. 1. For these reasons, we find that the Respondent violated Section 8(a)(1) of the Act by coer- cively interrogating Velazquez and Vargas about their union activity. II. IMPRESSION OF SURVEILLANCE We further find that the Respondent, through Jones’ questioning, violated Section 8(a)(1) by creating the im- pression that Velazquez’s and Vargas’ union activities were under surveillance. In determining whether a statement or question created an unlawful impression of surveillance, the Board considers “whether, under all the relevant circumstances, reasonable employees would assume from the statement in question that their union or other protected activities had been placed under surveil- lance.” Frontier Telephone of Rochester, Inc., 344 NLRB 1270, 1276 (2005), enfd. mem. 181 Fed. Appx. 85 (2d Cir. 2006) (citing Flexsteel Industries, 311 NLRB 257 (1993)); Schrementi Bros., 179 NLRB 853 (1969). The judge found that the Respondent’s employees “open- ly discussed” the union organizing meetings and that at least one employee “kidded” Jones about them and invit- ed him to attend. Finding that “a reasonable employee likely would conclude that [Jones] learned of the Union meeting lawfully,” the judge dismissed this allegation, relying on Frontier Telephone, supra. In Frontier Telephone, during a union organizing drive at the respondent’s Rochester, New York call center, an employee shared with a supervisor an online posting from an internet website used by employees to discuss union issues. 344 NLRB at 1275. Several days later, in response to another employee’s question about what the supervisor thought of the organizing drive, the supervisor acknowledged knowing about the website. An employee testified that he was intimidated by this remark because he assumed that the website was inaccessible to man- agement. Id. Nonetheless, the Board found that the su- pervisor did not create an impression of surveillance, reasoning that the employees had no basis for believing the website was private and secure, any subscriber to the site could show its contents to anyone else, there was no evidence that subscribers were told to maintain its secre- cy, and the employees’ organizational activities had be- come public and were generally known to everyone at the call center. Id. at 1276. Frontier Telephone is distinguishable. First, the union organizing effort here was in its infancy and limited to a handful of employees. It was undertaken covertly, in keeping with the organizer’s instruction to Serrano to “keep it as quiet as possible,” and it was promptly halted when it became clear that the Respondent, through Jones, had become aware of employees’ union activities. Se- cond, and contrary to the judge’s finding that “employ- ees” openly discussed union meetings, the only record evidence of any such discussion is Jones’ testimony con- cerning a conversation between himself and one employ- ee, Danielle Harris. There is no evidence that other em- ployees knew about this conversation. Finally, the speci- ficity of Jones’ question to Vargas, revealing that he knew that the union meeting had been held “yesterday,” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1184 further demonstrates its coerciveness. Under these cir- cumstances, reasonable employees in Velazquez’s and Vargas’ position would assume from Jones’ questions that their attendance at union meetings had been placed under surveillance.6 III. DISCHARGE OF SERRANO In August, General Manager Allen initiated an incen- tive program in the 191/192 cell area, where Serrano worked alongside employees Tammy Potts, Ronald James, and Carl Doman. Initially, the program was con- fined to this area, but Allen intended to expand it if it proved successful. Under the program, the four employ- ees each would receive an additional $1 per hour incen- tive pay if, as a team, they consistently produced at least 60 parts per hour on both the driver and passenger cell machines, with no bad parts.7 Allen met with Serrano, Potts, James, and Doman to introduce and explain the incentive program. After Allen left, the four employees discussed and criticized the program among themselves. They agreed that Serrano could not consistently make 60 parts per hour on the driver cell because the machines are inconsistent and regularly break down, and because the driver cell requires inserting and positioning 11 or 12 parts while the passenger cell requires only 5 parts. Thus, they agreed that they could not make 60 parts per hour as a team. At no time did Allen indicate that the employees might be disciplined if they did not meet the 60-parts-per-hour target. Over the next 2 weeks, Serrano’s production fell short of 60 parts per hour. Allen approached Serrano early on August 23 to discuss his production numbers. Jones was on vacation; leadman Frank Dellipoala was supervising the 191/192 cell area employees. Present during Allen’s conversation with Serrano were, among others, Potts and Dellipoala. According to Dellipoala, whom the judge credited,8 Allen asked Serrano why his production num- 6 Member Hayes would adopt the judge’s finding that the Respond- ent did not create an impression of surveillance. In so doing, he relies on the judge’s finding that union meetings were a topic of discussion in the workplace, and he agrees with the judge that under Frontier Tele- phone, supra, this allegation should be dismissed. Chairman Liebman relevantly dissented in Frontier Telephone, but for the reasons stated above, she nonetheless agrees that Frontier Tele- phone is distinguishable from this case, which presents even more compelling facts for finding an impression of surveillance violation. 7 The driver cell is used to weld driver-seat frames, and the passen- ger cell to weld passenger-seat frames. 8 The specifics of what was said during this conversation were in dispute at the hearing. The judge expressly credited Dellipoala’s ac- count, stating that “[t]o the extent that Dellipoala’s testimony conflicts with that of Serrano or other witnesses, I resolve such conflicts by crediting Dellipoala.” Further, the judge observed that, along with Dellipoala’s testimony, that of Allen, Serrano, and Potts “paint[s] a fairly consistent picture of what transpired.” In recounting the facts bers would fluctuate up and down. Serrano responded, “[I] come[ ] in in the morning, [I] feel[ ] good . . . later on in the day I get tired, and this is too much work and I’m not going to do it.” Dellipoala could not recall any further details of the conversation. According to Allen, Serrano “admitted” that he “wasn’t going to bust his butt to make any more” and that it was “not worth the buck.” Allen testified that it “broke [his] spirit” when Serrano said making 60 parts per hour was not “worth the buck” in front of everyone. Serrano testified that he told Allen that he and “a lot of people . . . do not feel the dollar is enough” because given “how the machines run,” he could not consistently produce 60 parts per hour on the driver cell. Corroborating this testimony, Potts testified that in response to Allen’s warning that Serrano had “better start producing more parts,” Serrano told Allen that he (Serrano) did not agree on the dollar of incentive pay and that he “wasn’t the only one that didn’t agree on it.” Later that day, Dellipoala told Serrano that he thought Serrano was fired and that Serrano “should have lied” to Allen that morning. Serrano responded that he told the truth about his inability to operate the driver cell at 60 parts per hour and would accept the consequences. Dellipoala testified that he knew Serrano could not run the machine fast enough to hit 60 parts per hour, and he conceded that neither could he. That afternoon, Allen terminated Serrano for having a “bad attitude.” Allen testified that he did not immediately terminate Serrano because he wanted to give him a chance to apologize for his comment. When Serrano failed to do so, Allen ter- minated him. Allen testified that he would terminate any employee for slowing down production or refusing to perform work. Roughly 2 weeks later, on September 8, employee Je- sus Lopez intentionally slowed production and said that he would not make any parts. Allen had Lopez written up and suspended for the day. On September 14, accord- ing to an incident report, Lopez was “hampering” pro- duction by running 10 parts when it was possible for him to run 40. On September 15, Lopez was terminated for insubordination when he refused a supervisory order to stop running bad parts. Under the Wright Line9 test, the General Counsel must first prove, by a preponderance of the evidence, that the employee’s protected conduct was a motivating factor in the employer’s adverse employment action. See Don- relevant to Serrano’s discharge, we accordingly rely on Dellipoala’s testimony and the nonconflicting testimony of Allen, Serrano, and Potts. 9 Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 622 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982). CAMACO LORAIN MFG. PLANT 1185 aldson Bros. Ready Mix, Inc., 341 NLRB 958, 961 (2004). The General Counsel satisfies this burden by showing that (1) the employee was engaged in protected activity, (2) the employer had knowledge of the protected activity, and (3) the employer bore animus toward the employee’s protected activity. Id. Animus may be in- ferred from circumstantial evidence, including timing and disparate treatment. Tubular Corp. of America, 337 NLRB 99 (2001). If the General Counsel meets his bur- den, the burden of persuasion “shift[s] to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct.” Wright Line, supra at 1089. Applying Wright Line, the judge found that Serrano had engaged in protected activity and that the Respond- ent knew of that activity; there are no exceptions to these findings. The judge found, however, that the General Counsel did not prove, by a preponderance of the evi- dence, a connection between Serrano’s protected activity and his discharge. Alternatively, the judge concluded that even assuming otherwise, the Respondent met its affirmative defense by showing that it would have dis- charged Serrano for being unwilling or unable to meet its production standards. Crediting Dellipoala, the judge found that Serrano “didn’t always want to work”; credit- ing Allen, he found that other employees were able to make 60 parts per hour on the driver cell. Ultimately, however, he found that it did not matter whether Serra- no’s failure to do likewise was owing to inability or un- willingness. Serrano had not met the standard and said he would not meet it. “An employer,” the judge con- cluded, “need not keep on the payroll an employee who both failed to measure up and who predicts his continu- ing failure to measure up.” While the proposition stated by the judge may be valid in other circumstances, the record here demonstrates that the Respondent did not consistently act in conformity with that proposition. As stated above, within a few weeks of Serrano’s discharge, employee Lopez repeated- ly engaged in conduct more egregious than Serrano’s and was treated more leniently. First, Lopez intentionally slowed down production and said that he would not make any parts. He was not discharged. Rather, Allen had Lopez written up and suspended for the day. Next, Lopez hampered production by running 10 parts when it was possible for him to run 40. Again, Lopez was not discharged. The Respondent merely prepared an incident report. Only after Lopez refused to obey a supervisory order to stop running bad parts was he finally discharged for insubordination. Thus, Lopez refused to perform his normal duties and was given two opportunities to correct his behavior. Serrano was terminated immediately for refusing to hit an incentive target that he and others viewed as unrealistic; he was given no second or third chance. The Respondent’s disparate treatment of Serrano as compared to Lopez supports an inference that animus against Serrano’s protected concerted activity was a mo- tivating factor in his discharge. It also refutes the Re- spondent’s defense that it would have immediately dis- charged Serrano even in the absence of that activity. Accordingly, we find that by discharging Serrano, the Respondent violated Section 8(a)(1) of the Act. IV. AMENDED REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, we shall order it to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act. Specifically, having found that the Respondent has violated Section 8(a)(3) and (1) by suspending Sam Serrano and Section 8(a)(1) by discharging him, we shall order the Respondent to offer Sam Serrano full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed, and to make him whole for any loss of earnings and other benefits suffered as a result of his suspension and discharge. Backpay shall be computed in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950), with interest at the rate pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987), compounded daily as prescribed in Ken- tucky River Medical Center, 356 NLRB 6 (2010). ORDER The National Labor Relations Board orders that the Respondent, Camaco Lorain Manufacturing Plant, Lo- rain, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercively interrogating employees about their un- ion membership, activities, sympathies, and/or support. (b) Creating the impression that it is engaged in sur- veillance of its employees’ union or other protected con- certed activity. (c) Suspending any of its employees because they en- gage in union or other protected concerted activity. (d) Discharging any of its employees because they en- gage in protected concerted activity. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1186 (a) Within 14 days from the date of this Order, offer Sam Serrano full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. (b) Make Sam Serrano whole for any loss of earnings and other benefits suffered as a result of the discrimina- tion against him, in the manner set forth in the amended remedy section of this decision. (c) Preserve and, within 14 days of a request, or such additional time as the Regional Director may allow for good cause shown, provide at a reasonable place desig- nated by the Board or its agents, all payroll records, so- cial security payment records, timecards, personnel rec- ords and reports, and all other records, including an elec- tronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this Order. (d) Within 14 days from the date of this Order, remove from its files any reference to Sam Serrano’s unlawful suspension and discharge and, within 3 days thereafter, notify Serrano in writing that this has been done and that the suspension and discharge will not be used against him in any way. (e) Within 14 days after service by the Region, post at its Lorain, Ohio facility copies of the attached notice marked “Appendix.”10 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Respondent’s authorized representa- tive, shall be posted by the Respondent and maintained for 60 consecutive days in conspicuous places, including all places where notices to employees are customarily posted. In addition to physical posting of paper notices, notices shall be distributed electronically, such as by email, posting on an intranet or an internet site, and/or other electronic means, if the Respondent customarily communicates with its employees by such means.11 Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. If the Respondent has gone out of business or closed the facility involved in these proceed- ings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since April 27, 2006. 10 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” 11 For the reasons stated in his dissenting opinion in J. Picini Floor- ing, 356 NLRB 11 (2010), Member Hayes would not require electronic distribution of the notice. (f) Within 21 days after service by the Region, file with the Regional Director for Region 8 a sworn certifi- cation of a responsible official on a form provided by the Region attesting to the steps that the Respondent has taken to comply. 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 vio- lated Federal labor law and has ordered us to post and obey this notice. FEDERAL LAW GIVES YOU THE RIGHT TO Form, join, or assist a union Choose representatives to bargain with us on your behalf Act together with other employees for your bene- fit and protection Choose not to engage in any of these protected activities. WE WILL NOT coercively question you about your union membership, activities, sympathies, and/or support. WE WILL NOT create the impression that we are en- gaged in surveillance of your union or other protected concerted activity. WE WILL NOT suspend any of you because you engage in union or other protected concerted activity. WE WILL NOT discharge you because you engage in protected concerted activity. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights listed above. WE WILL, within 14 days from the date of the Board’s Order, offer Sam Serrano full reinstatement to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority or any other rights or privileges previously enjoyed. WE WILL make Sam Serrano whole for any loss of earnings and other benefits resulting from his suspension and discharge, less any net interim earnings, plus inter- est. WE WILL, within 14 days from the date of the Board’s Order, remove from our files any reference to the unlaw- ful suspension and discharge of Sam Serrano, and WE WILL, within 3 days thereafter, notify him in writing that CAMACO LORAIN MFG. PLANT 1187 this has been done and that the suspension and discharge will not be used against him in any way. CAMACO LORAIN MANUFACTURING PLANT Cheryl Sizemore, Esq., for the General Counsel. Richard R. Mellott, Jr., Esq. (Trigilio & Stephenson, P.L.L.), for the Respondent. Tom Zmarzek, for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. Although I conclude that Respondent violated Section 8(a)(3) and (1) by suspending an employee for engaging in union and protected concerted activities, I further conclude that Respondent did not violate the Act when it discharged the employee later. 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 notice of hearing dated November 30, 2006. In doing so, the Regional Director acted for the General Counsel of the Board, whom I will refer to as the “General Counsel” or the “govern- ment.” 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 Complaint and its amendments. On March 13, 2007, a hearing opened before me in Cleve- land, Ohio. The parties presented evidence on March 13 and 14, 2007, and counsel argued the case orally on March 15, 2007. On March 16, 2007, I issued a bench decision pursuant to Section 102.35(a)(10) of the Board’s Rules and Regulations, followed by a Certification of Bench Decision issued in accord- ance with Section 102.45 of the Rules and Regulations. The General Counsel filed exceptions and a supporting brief, and the Respondent filed an answering brief. On December 18, 2008, the Board issued an Order Remand- ing the case to me. See Camaco Lorain Mfg. Plant, 353 NLRB 605 (2008). As instructed by the Board, I afforded counsel the opportuni- ty to file briefs, which I have read and considered. The Order Remanding directs me, in part, to “provide a writ- ten decision addressing each of the contested complaint allega- tions.” (Emphasis added.) The Board’s use of the phrase “con- tested complaint allegations” rather than the narrower phrase “remanded issues” indicates to me that the Board seeks a full new decision rather than only a decision addressing the re- manded issues. For clarity, I will list and summarize the re- manded issues under a separate heading below, but otherwise, the decision will resemble an initial decision to comply with the Board’s instructions. Remanded Issues The full meaning and significance of the remanded issues will become apparent later, when the contested complaint alle- gations are discussed. However, it may benefit clarity to list the issues now, so that they may be kept in mind as the decision proceeds. The Board remanded the following issues: 1. Did Supervisor Lewie Jones violate Section 8(a)(1) of the Act on April 26, 2006, by asking employees Vargas and Ve- lazquez about a meeting—specifically, “How was the meet- ing?”—in apparent reference to a union organizing meeting the previous day? In applying the criteria set forth in Rossmore House, 269 NLRB 1176 (1984), I am to consider whether the employees’ responses—one a denial and the other silence— should weigh in favor of a finding of unlawfulness pursuant to Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), Sproule Con- struction Co., 350 NLRB 774, 774 fn. 2 (2007), and Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003). 2. Did the evidence establish that employees had joked with Supervisor Jones about the union meeting? 3. Did Jones’ question to Vargas and Velazquez—“How was the meeting?”—unlawfully create an impression of surveil- lance? 4. Were the protected activities of employee Samuel Serrano a substantial or motivating factor in Respondent’s May 30, 2006 decision to suspend Serrano for 3 days? In considering this issue, I am to take into account the testimony of Human Resources Manager Karin Mayfield that the decision to sus- pend Serrano was a “team decision.” 5. Does other evidence support a finding that animus entered into Respondent’s decision to impose this discipline? Other evidence to be considered includes the timing of the suspension and Serrano’s meeting with Human Resources Manager May- field on the day Jones initiated the decision to discipline Serra- no. 6. Did Supervisor Jones or lead man Frank Dellipoala report Serrano’s alleged threat to Human Resources Manager May- field? If it was Jones, does that affect the finding that Re- spondent would have disciplined Serrano even in the absence of protected activity? 7. Did employee Daniel Clarkston tell Supervisor Jones that he (Clarkston) was going to punch Human Resources Manager Mayfield? If so, what distinguishes this conduct from Serra- no’s conduct which resulted in disciplinary action? 8. The Board concluded that Serrano did not make any statement during a meeting at which General Manager Mike Allen introduced an incentive program designed to increase production. Allen testified that he discharged Serrano for comments made to him on the production floor. The Board directed me to make credibility findings regarding this conver- sation and to determine how these findings affect my conclu- sion that Serrano’s discharge was lawful. Admitted Allegations In its answers to the complaint and its amendments, Re- spondent admitted a number of allegations. Based on those admissions, I find as follows: DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1188 The Union filed the charge and amended charges, and Re- spondent 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 standards for the exercise of jurisdiction, has been 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 Supervisor Lewie Jones. At all material times, the Union has been a labor organiza- tion 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. The record establishes that some time in the first part of 2006, employee Samuel Serrano contacted the Union, and re- ceived instructions on how to organize Respondent’s produc- tion workers. Serrano and five other employees attended a meeting with a union organizer on April 26, 2006. This meet- ing took place at a Denny’s restaurant in Lorain, Ohio, where Respondent’s plant is located. An employee, Andre Vinson Cheers, testified that the day af- ter 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 peo- ple 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 testimo- ny in a way that hurt Respondent. Jones also had been dis- charged, but testified in a way that did not offer him any satis- faction of revenge. Another employee Alejandro Velazquez testified that after he returned from the union organizing meeting at Denny’s res- taurant, 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 Re- spondent. Therefore, it was not in his interest to give testimony which might result in a finding adverse to Respondent. That factor militates in favor of finding Velazquez’ testimony to be credible. Respondent, however, had discharged Jones before the date of the hearing. Although Jones did not manifest any hostility towards his former employer, it would be reasonable to con- clude that he would not be inclined to slant his testimony in favor of a company which had discharged him. Thus, any bias- ing effect of employment status would be about equal for both Velazquez and Jones. Therefore, it provides no basis for de- termining which testimony more likely is reliable. Similarly, my observations of the demeanor of both witness- es do not help decide which testimony to credit. Both witness- es 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 blunt- ness. 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 credi- bility resolution necessarily would entail too much guesswork for comfort. However, more than one witness testified that Jones asked about the union meeting, which makes it more likely that Jones made the statement in question. Thus, another employee, Raphy Vargas, testified that Jones asked him a similar question. According to Vargas, the day after the meeting, Jones approached him and asked, “How was the meeting yesterday?” Vargas replied that he did not know what meeting Jones was talking about, and Jones did not say anything else. Vargas also remained employed by Respondent and the rec- ord 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. Therefore, based on the testimony of Velazquez and Vargas, I conclude that Jones did ask employees how they enjoyed the meeting. Now, I must determine whether Jones’ questions interfered with, restrained, or coerced employees in the exercise of their Section 7 rights, either by constituting unlawful inter- rogation or by creating the impression among employees that Respondent had placed their union activities under surveillance. First, I will consider whether Jones’ questions constituted un- lawful interrogation. 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 Co. v. NLRB, 332 F.2d 47 (2d Cir. 1964). 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 interroga- tor appear to be seeking information on which to base taking action against individual employees? CAMACO LORAIN MFG. PLANT 1189 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 employee called from work to the boss’s office? Was there an atmos- phere 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 958 (2004). With respect to the first Rossmore House factor, the record does not establish a history of employer hostility or discrimina- tion. Although the record includes references to a previous settlement, the government did not offer any settlement agree- ment into evidence, so it is not possible to determine whether such an agreement, if it exists, includes a nonadmissions clause. In Painters District Council 9 (We’re Associates), 329 NLRB 140, 143 (1999), the judge noted that informal settle- ment agreements and formal settlement stipulations containing nonadmission clauses cannot be used to establish a proclivity to violate the Act. Thus, the only type of settlement agreement that can be used to establish proclivity to violate the Act is a formal settlement, without a nonadmission clause. See Team- sters Local 122, 334 NLRB 1190, 1192 (2001). There is no indication that Respondent ever entered into a formal settlement without a nonadmission clause. Accordingly, I conclude that the record does not establish any history of em- ployer hostility or discrimination. 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 management. 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 coer- cive interrogation. The Board’s Order Remanding directed me, in applying the criteria set forth in Rossmore House, above, to consider wheth- er the employees’ responses—one a denial and the other si- lence—should weigh in favor of a finding of unlawfulness pur- suant to Bourne v. NLRB, 332 F.2d 47, 48 (2d Cir. 1964), and, particularly, the Board’s recent decisions in Sproule Construc- tion Co., 350 NLRB 774, 774 fn. 2 (2007), and Grass Valley Grocery Outlet, 338 NLRB 877, 877 fn. 1 (2003). In Sproule Construction, the Board followed the framework set out in Rossmore House, above, to determine whether, under all the circumstances, the interrogation reasonably tended to restrain, coerce, or interfere with rights guaranteed by the Act. The Board found that the questioning “was coercive given that (a) the questioning occurred while the applicants were seeking employment; (b) the applicants sought to conceal their support for the Union; (c) the Respondent offered no legitimate expla- nation for the questioning; and (d) the questioning occurred in the context of serious unfair labor practices.” 350 NLRB 774 fn. 2 (2007) (Emphasis added). Thus, the Board regarded the employees’ reluctance to reveal their union support as one indication that the questioning was coercive. Presumably, if the interrogation did not have a coer- cive effect, the employee would feel more comfortable discuss- ing his union activity and would therefore be more likely to do so. Following Sproule Construction, I conclude that the em- ployees’ reluctance to disclose whether they attended a union organizing meeting weighs in favor of finding that the interro- gation was coercive. The Board also directed that I examine whether the evidence establishes that employees had joked with Supervisor Jones about the union meeting. In its Order Remanding, the Board stated, in part: The judge found that Jones credibly testified that some em- ployees had joked about the Union. In fact, however, Jones named only one such employee: employee Danielle Harris. Jones [Harris] did not testify, and there appears to be no other record evidence suggesting that Vargas or Velasquez (or any- one other than Harris) had ever joked with Jones about union meetings. Moreover, Vargas, whom the judge appears to have credited, expressly testified that Jones did not question him in a joking manner. The judge does not address this con- trary testimony. We therefore remand the interrogation and impression of surveillance allegations to the judge for further analysis. Employee Raphy Vargas testified that sometime in April 2006, Sam Serrano invited him to attend a union organizing meeting at Denny’s Restaurant in Lorain, Ohio. Vargas went to this meeting and, according to his testimony, stayed for 3 to 5 minutes. Vargas further testified that the next day, Supervisor Jones asked, “How was the meeting yesterday.” According to Var- gas, he replied that he did not know what Jones was talking about, and Jones did not say anything else to him. Although Vargas testified that “the rest of the employees” were present when Jones asked the question, Vargas did not identify any other employee by name and also did not indicate the number of employees present. When the General Counsel asked Vargas if Jones ever ques- tioned him again about the Union, Vargas answered “No.” The Board’s Order Remanding, quoted above, stated that Vargas “expressly testified that Jones did not question him in a joking manner.” The Order Remanding referred to Vargas’ testimony as “contrary testimony.” It may be helpful to quote the relevant portion of Vargas’ testimony verbatim. On direct examination, Vargas testified as follows: Q. What did Mr. Jones say to you? A. How was the meeting yesterday? Q. Did he say anything else? A. No. Vargas returned to this subject briefly during his cross– examination: Q. And Mr. Jones said to you how was the meeting; cor- rect? A. How was the meeting, yeah? Q. Did he say so in kind of a joking fashion? A. Well, he just asked me, you know, normal, how was the meeting yesterday? Q. Did he threaten your job at all? DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1190 A. No. Jones testified as follows: Q. Did you ever ask Raphy Vargas how was the meeting back in April of ‘06? A. I’m going to say, to the best of my recollection, I don’t think I’ve ever talk[ed] to Raphy about a union –– Q. It doesn’t stick –– A. –– let alone asking how the meeting went. Q. It doesn’t stick in your mind at all that you said that? A. No. Thus, Jones did not squarely deny having made the state- ment, but only testified that he did not recall it. Accordingly, I find that Jones did make the statement which Vargas attributed to him. Additionally, I find that Jones asked the question in his normal tone of voice. The Bench Decision and Certification noted that the employ- ees, rather than Jones, initiated the joking. I based this finding on Jones’ testimony. For the reasons stated in the Bench Deci- sion and Certification, including my observations of Jones while he testified, I concluded that he was a reliable witness and that his testimony should be credited. Because of my reli- ance on Jones’ testimony, which I credit on this point, I contin- ue to find that employees joked about the union meetings at Denny’s Restaurant and that employees, not Jones, initiated the joking. However, the Board directed me to determine whether the evidence established that employees had joked about the meet- ing with Jones. Based on Jones’ uncontradicted testimony, which I credit, I find that employee Danielle Harris told Jones about the union organizing meetings and joked with him about them. Specifically, Jones testified that Harris “would rub my belly and say I’d––I’ll meet you at Denny’s in a laughing way.” Jones’ testimony suggests that at some point, someone invit- ed him to attend one of the organizing meetings. This unnamed individual may have been Harris. Jones’ testimony that employees reacted with amusement to Serrano’s union organizing efforts appears plausible in the rather unusual circumstances of this case. Jones testified that he did not believe Serrano had the “clout” to persuade employ- ees to unionize. In most cases, I would doubt the reliability of such a comment, but most cases do not involve a union organ- izing effort by an employee who engaged in bizarre workplace behavior. For example, uncontroverted evidence establishes that, to make a point, Serrano sometimes would lie on the floor and move in such a way that one witness referred to it as the “ga- tor.” In view of such behavior, it isn’t difficult to believe that employees made jokes at Serrano’s expense. Employees who had witnessed Serrano’s strange antics in the workplace very plausibly might regard his union organizing efforts with amusement. In the Certification of Bench Decision, I noted that the Board long has held that in determining the coerciveness of an inter- rogation, the Board applies an objective standard which consid- ers the speaker’s intent irrelevant. Even if a supervisor claimed that he only had been joking, that excuse fails to cleanse state- ments of their coercive effect, because employees can still de- tect the threat behind the smile and be affected by it. After acknowledging that well-established principle, I rea- soned that the unusual facts of the present case warranted a distinction. In attempting to make this distinction, I did not focus on the supervisor’s intent in making the statement be- cause that intent still remained irrelevant. Rather, I considered whether the employees who heard the question would regard it as a genuine attempt at humor without other intent, or would view it as coercive interrogation in disguise. Concluding that the employees reasonably would regard the question as a joke, I reasoned that the interrogation was noncoercive. That analysis suffers from at least two flaws, one a matter of law and the other of fact. Legally, my reasoning cut with too fine a knife. It paid lip service to the principle that in determin- ing the coerciveness of an interrogation, the Board applies a strictly objective standard focusing on how the allegedly coer- cive statement reasonably would affect employees’ willingness to engage in protected activities. After acknowledging that principle, however, I transgressed it by considering what effect Supervisor Jones’ question actually had on the two employees. My reasoning assumed that I could take into account that the employees believed the supervisor to be joking and still subject his statement to an objective analysis. In effect, I was “objec- tively” determining whether Jones’ question reasonably would have a coercive effect on employees who believed that the su- pervisor was asking it in jest. To follow the Board’s principle that it looks only to the ef- fects a statement reasonably would have on employees, the judge must assume hypothetical employees who are average and, indeed, faceless. The moment I added a specific character- istic to the hypothetical employees—namely, that they knew the supervisor was joking—the analysis started becoming sub- jective because it had begun to focus on specific individuals, the employees who actually heard the supervisor’s words. It is true that I went only a little bit down this path, taking into ac- count only that the employees believed the supervisor to be joking, but going a “little bit” down this path was going too far. I erred. Additionally, the credible evidence was insufficient to sup- port my conclusion that the two employees believed Jones to be joking. My error thus was factual as well as legal. As discussed further below, employees indeed joked about the Union organizing effort and at least one employee, Harris, joked to Supervisor Jones about it. However, those facts do not establish that Jones gave the appearance of joking or that em- ployees reasonably would perceive him to be joking. Whatever merriment Jones may have felt inside, the evidence is insuffi- cient to establish that employees perceived it. Now, I will perform a Rossmore House analysis untainted by these errors. The first four Rossmore House factors still weigh against finding an unlawful interrogation. The record does not establish a history of employer hostility or discrimination. It also does not establish that Jones was seeking the information, or that he appeared to be seeking the information, as a basis for taking action against employees. Jones was not high in the management structure and the interrogation did not take place in a locus of authority. CAMACO LORAIN MFG. PLANT 1191 Thus, only the fifth Rossmore House factor weighs in favor of finding that the question was coercive and therefore unlaw- ful. Accordingly, I adhere to my conclusion that Jones’ ques- tion did not constitute an unlawful interrogation. The Board also directed that I determine whether Jones’ question to Vargas and Velazquez—“How was the meet- ing?”—unlawfully created an impression of surveillance. Causing employees to believe their union activities are being watched obviously would interfere with, restrain and coerce them in the exercise of Section 7 rights. In determining whether an employer has unlawfully created the impression of surveillance of employees’ union activities, the Board asks whether, under all the relevant circumstances, reasonable employees would assume from the statement in question that their union or other protected activities had been placed under surveillance. Waste Management of Arizona, 345 NLRB 1339 (2005), citing Flexsteel Industries, 311 NLRB 257 (1993); Schrementi Bros., Inc., 179 NLRB 853 (1969). As the Board explained in Frontier Telephone of Rochester, 344 NLRB 258, 264 (2005), its essential focus has always been on the reasonableness of the employees’ assumption that the employer was monitoring their union or protected activates. The Board applies an objective standard in assessing the rea- sonableness of a particular statement. Stated another way, the Board examines the facts and determines what message a rea- sonable employee would understand the statement to convey. In Frontier Telephone of Rochester, above, the employees had used a website to help their organizing campaign. A su- pervisor told an employee that he was aware of a message that another employee had posted on a page at this website. After examining the statement and its context, the Board concluded that a reasonable employee hearing the supervisor’s remark would assume that the supervisor had learned about the em- ployee’s message lawfully rather than as a result of having placed the employees’ union activities under surveillance. Therefore, it dismissed this allegation. The present facts appear to fall within the Frontier Tele- phone of Rochester precedent. At work, employees openly discussed the Union organizing meetings and at least one em- ployee kidded Supervisor Jones about them. An employee even invited Jones to attend. In these circumstances, a reason- able employee likely would conclude that the supervisor learned of the Union meeting lawfully, rather than as the result of surveillance. It may be noted that the fact that employees discussed the Union openly in the workplace is not itself determinative. Oth- er circumstances may still lead a reasonable employee to con- clude that management had placed workers’ union activities under surveillance. Thus, in Rogers Electric, Inc., 346 NLRB 508, 509 (2006), the Board noted that it has found that an em- ployer creates an impression of surveillance when it monitors employees’ concerted protected activity in a manner that is “out of the ordinary,” even if the activity is conducted openly. See, e.g., Loudon Steel, Inc., 340 NLRB 307, 313 (2003). The present record does not establish either that Respondent was acting in an “out of the ordinary” manner to observe em- ployees or that the employees had any reason to form such a belief. Accordingly, I conclude that Supervisor Jones’ question did not create an unlawful impression of surveillance. There- fore, I recommend that the Board dismiss this allegation. The complaint also alleges that in about April 2006, Re- spondent, by Supervisor Lewie Jones, made statements of fu- tility regarding employees’ union activities. This allegation rests on the testimony of employee Andre Cheers, who attribut- ed to Jones a statement that there was not going to be a union in the plant, that employees tried it before “and people got fired.” Jones denied making such a statement. For the reason discussed above, I have not credited Cheers’ testimony. Accordingly, I conclude that Jones did not make the statement in question. Therefore, I recommend that the Board dismiss this allegation. 8(a)(3) Allegations Suspension of Serrano Paragraph 7(B) of the complaint, as amended, alleges that on or about May 30, 2006, the Respondent suspended employee Sam Serrano. Paragraph 7(D) alleges, in pertinent part, that Respondent took this action to discourage employees from engaging in protected, concerted activity and/or because Serra- no formed, joined, and/or assisted the Union and engaged in protected concerted activity. Respondent does not dispute that it suspended Serrano, but denies that it did so for the unlawful reasons alleged. Serrano began work for Respondent as a production employ- ee in 2004. At some point, Serrano began complaining to Re- spondent’s human resources director, Karin Mayfield, about how his supervisor, Lewie Jones, treated employees. Serrano made one such complaint to Mayfield the day before his May 30, 2006 suspension. Serrano’s complaint to Mayfield will be discussed later in this decision. The next day, a lead man, Frank Dellipoala, reported to Su- pervisor Lewie Jones that he had seen Serrano throwing his hands up and down in the air while standing by a machine. According to Dellipoala, when he 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 it’s mine out there. Lewie is going to pay.” Delliapoala gave testimony to this same effect at the hearing. Although Serrano consistently has denied making this state- ment, my observations of the witnesses lead me to credit Dellipoala’s testimony. Therefore, I conclude that Serrano did say the words Delliapoala attributed to him. After Supervisor Jones received this report from Dellipoala, he contacted Human Resources Manager Mayfield. According to Mayfield’s testimony, which I credit, Jones wanted to dis- charge Serrano. Later that day, Mayfield called Dellipoala into her office. Also present were Supervisor Jones and one of Respondent’s managers, Athanasios (Tom) Koutsorellis. Dellipoala de- scribed what Serrano had said and then left the meeting. Based on Dellipoala’s testimony, which I credit, I find that Mayfield did not ask him about Serrano’s union activity. Mayfield then called Serrano into her office. Jones and Koutsorellis also were present. Mayfield asked Serrano about DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1192 the statement Dellipoala had attributed to him and, according to Serrano, he denied making it. Nonetheless, Mayfield told Ser- rano he was suspended for the remainder of that day and for the 3 following days. The complaint alleges that this suspension of Serrano violat- ed Section 8(a)(3) and (1) of the Act. In considering this alle- gation, I will follow the framework established 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 activity 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 es- tablish a link, or nexus, between the employees’ protected ac- tivity and the adverse employment action. More specifically, the General Counsel must show that the protected activities were a substantial or motivating factor in the decision to take the adverse employment action. See, e.g., North Hills Office Services, 346 NLRB 1099, 1101 (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 fn. 12 (1996). In its Order Remanding, the Board instructed me to deter- mine whether the protected activities of employee Serrano were a substantial or motivating factor in Respondent’s May 30, 2006 decision to suspend Serrano for 3 days. In considering this issue, I am to take into account the testimony of Human Resources Manager Karin Mayfield that the decision to sus- pend Serrano was a “team decision.” Additionally, I must determine whether other evidence sup- ports a finding that animus entered into Respondent’s decision to impose this discipline. Other evidence to be considered in- cludes the timing of the suspension and Serrano’s meeting with Human Resources Manager Mayfield on the day Jones initiated the decision to discipline Serrano. First, I will analyze the significance of Mayfield’s testimony that it was a “team decision” to suspend Serrano. She testified “Well, we discussed it and ultimately we all supported it.” Mayfield did not identify specifically the composition of the “human resources team” which made this decision. Although it is possible that others participated in the decision besides May- field, Koutsourelis, and Jones—the three persons present when Serrano was interviewed—the record does not establish such participation. Therefore, I will assume that only Mayfield, Koutsourelis, and Jones took any part in that decision. In its Order Remanding, the Board stated that it “appears from the record that Jones (who allegedly interrogated Vargas and Velazquez) may have been instrumental in that decision.” The Boar’s use of the word “appears” rather than some more conclusive phrase (such as “the record establishes”) leads me to believe that the Board did not make a definite, binding finding on this issue but rather desired more analysis based on the evi- dence. In my view, the record establishes, at most, that Super- visor Jones attended the meeting at which the “human resources team” made the decision to discipline Serrano Respondent’s brief on remand states that there “is no evi- dence that Jones was a member of the ‘team’ or had any re- sponsibilities in Human Resources at Camaco.” However, determining whether or not this supervisor was a member of the “human resources team” in some official sense, does not get to the heart of the Board’s concern. The pivotal question does not turn on Jones’ status as a team “member” but on how much Jones participated in the decision-making process which result- ed in Serrano’s suspension. Thus, even if Jones had some offi- cial-looking certificate listing him as a member of the human resources team, that would not matter if he took no part in the decision making. Conversely, even if Jones never attended a human resources team meeting before and never attended an- other one later, if he was present at this particular meeting and contributed to the discussion regarding Serrano, I must consider how and to what extent he affected the outcome. Although the record does not reveal with numerical precision the extent to which Jones participated in the decision to sus- pend Serrano, it certainly suggests that Jones’ role in that deci- sion was greater than de minimis. Based on Mayfield’s testi- mony, which I credit, when Jones first came to Mayfield con- cerning what Serrano had said, Jones wanted to discharge May- field. So, even if Jones expressed no opinion at all when the “human resources team” deliberated, Mayfield already knew that Jones sought the imposition of discipline. Moreover, Mayfield’s testimony that “we discussed it and ul- timately we all supported it” indicates that Jones did participate to some extent in the decision-making process and ultimately agreed to suspend Serrano. Considering that Jones initially wanted Serrano fired, it would seem quite unlikely that he ever tried to influence the “team” to impose no discipline at all. The record does not establish that either Mayfield or Koutsourelis knew about Serrano’s attempts to organize a un- ion at the time the “team” decided to suspend him. However, because Jones was a supervisor and agent of Respondent within the meaning of Sections 2(11) and (13) of the Act, respectively, his knowledge of Serrano’s protected activities may be imputed to Respondent as a matter of law. Moreover, as discussed be- low, Serrano engaged in other protected activity and Mayfield was aware of it. In its Order Remanding, the Board directed that I consider the timing of the suspension and Serrano’s meeting with Hu- man Resources Manager Mayfield on the day Jones initiated the decision to discipline Serrano. Citing Real Foods Co., 350 NLRB 309, 311 (2007), and Davey Roofing, Inc., 341 NLRB 222, 223 (2004), the Board observed that the suspicious timing of an adverse employment action in relation to protected activi- ty can support an inference of unlawful motivation. The Board quoted parts of Jones’ testimony indicating that the supervisor’s attitude towards Serrano changed for the worse after Serrano began his union activities. CAMACO LORAIN MFG. PLANT 1193 Specifically, Jones testified that Serrano had started out as “probably one of my most favorite employees” but that in early spring 2006 “the tables turned.” In its Order Remanding, the Board observed that Serrano had begun his union organizing activity shortly before this time period. When Supervisor Jones described the change in Serrano’s at- titude and performance, he did not mention Serrano’s union activities. Instead he testified that “out of the blue” Serrano changed from a “focused” employee (presumably meaning focused on his work) to an unfocused employee. Specifically, Jones testified as follows: He worked hard, he was focused. And, out of the blue, just like everything, the tables turned, you know. He wasn’t fo- cused. Thus, Jones’ “tables turned” remark, in context, does not re- fer to Serrano’s protected activities but rather to his dedication to, or concentration upon, his work. Indeed, in both the sen- tence before the “tables turned” phrase and the sentence after that phrase, Jones used the word “focused.” Before the change, Serrano was focused and afterwards he was not. No evidence extrinsic to Jones’ testimony sheds any light on what Jones meant by the “tables turned” remark. Accordingly, I must rely on context to ascertain the most likely meaning. The context, however, does not suggest that Jones had in mind Serrano’s Union activities. To the contrary, the context, as quoted above, indicates that Jones’ words described a decline in the attention Serrano paid to his job duties. Under what circumstances would it be fair and logical to separate the “tables turned” phrase from its setting in Jones’ testimony and consider it, in isolation, to suggest antiunion motivation? Doing so requires an assumption that Jones did not mean what he said. Sometimes, the Board does conclude that a supervisor said one thing while meaning another. These instances typically concern a supervisor’s comments to employees about a union. A supervisor may use facially innocent words to conceal an unlawful threat, but the words cannot sound entirely innocent because if they did, the employees would not discern the hidden threat at all. The Board, applying an objective standard, can determine what a typical employee reasonably would under- stand the message to be. However, Supervisor Jones had no reason to sneak a covert threat into his testimony. From the witness stand, he was not talking to employees about unionization. Even assuming for the sake of analysis that Jones desired to dissuade employees from organizing—a doubtful assumption, considering that Re- spondent had discharged Jones well before the hearing—the courtroom would not provide him an opportunity. In other words, no basis exists for assuming that Jones would intend the words of his testimony to convey something other than their obvious meaning. Specifically, Jones would have no other reason to describe Serrano as “focused” before the “tables turned” and not “focused” afterwards except to explain that Serrano had stopped paying attention to his duties. Could Jones have been using the phrase “tables turned” as a euphemism for “began a union organizing drive?” In the ab- sence of credible extrinsic evidence indicating that Jones really meant the latter, I would not construe his testimony to mean something so different from the obvious import of the words. A judge isn’t free to make words mean whatever he chooses them to mean at a particular moment. Quite possibly, Serrano’s interest in his job duties may have fallen at the same time his interest in organizing a union in- creased. Indeed, some kind of dissatisfaction with working conditions easily could prompt both changes simultaneously. However, even if Serrano stopped attending to his job perfor- mance at the same time he began focusing on unionization, the concurrence of these events in time provides no logical basis to interpret Jones’ testimony in a strained way. As Serrano’s supervisor, Jones would evaluate the quality of Serrano’s work on a continuing basis. Jones had a legitimate reason to monitor how carefully Serrano was paying attention to his job duties. Considering that the supervisor bore respon- sibility for the quality of the work performed under his supervi- sion, Jones naturally would be concerned when Serrano stopped focusing on his work and might well have taken this change personally. As the Board noted, Jones wasn’t always an easy supervisor. That, too, is consistent with the conclusion that Jones set high standards for his employees and regarded as apostasy a work- er’s change from focused to indifferent. If so, there would be nothing surprising about Jones’ use of the “tables turned” ex- pression to describe the change in Serrano. As the Board noted, under some circumstances, unlawful motivation may be inferred from suspicious timing. However, when a judge draws such an inference, he risks the logical error described by the Latin phrase post hoc ergo propter hoc. The sequence of events might reflect a connection, but on the other hand, it might not. If the record includes other evidence of animus, it increases the likelihood that the timing of events reflects unlawful motivation. On the other hand, if the record does not contain evidence of animus apart from timing, draw- ing an inference from timing may be risky, unreliable, and in- appropriate. Jones’ “tables turned” remark cannot justify drawing an in- ference from timing because it had nothing to do with protected activity. In other respects, the record does not warrant such an inference. On the other hand, two other things Jones said on the witness stand concern me. Jones testified that Serrano had turned on him “like a pit bull.” This description suggests misconduct more active than merely paying insufficient attention to work duties. Jones also testified that “rather than focus on his work, [Serrano] was trying to create problems, so to speak, for me on a daily basis.” That phrase “trying to create problems” possibly might refer to Serrano’s union organizing efforts or other pro- tected activities. Jones explained that Serrano “used performance as a tool to get attention.” Although the exact meaning of this statement isn’t clear, it doesn’t manifestly pertain to any protected activi- ty. However, Jones also said that Serrano “wasn’t happy with the way the plant was working and, you know, he would write everything down in big letters on the board for everybody to see and, you know, just––just trying to be extremely difficult.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1194 Under certain circumstances, the statute might protect this ac- tivity, if the words Serrano wrote on the board “for everybody to see” pertained to employees' wages, hours, or working con- ditions. Serrano’s actions obviously irritated Jones. However, “un- lawful motivation” entails more than being annoyed at some- one. It involves not only a desire to take an adverse employ- ment action against someone because of protected activity but also a willingness to break the law to accomplish that end. The fact that Jones believed Serrano was “trying to create prob- lems” does not compel the conclusion that Jones would be will- ing to violate federal law if necessary to achieve that objective. Although Jones’ testimony that Serrano was “trying to create problems” and was “trying to be extremely difficult” raises concerns, it does not, by itself, justify inferring unlawful moti- vation from the timing of events. Serrano began his union ac- tivity in late February or early March 2006, and the record sug- gests that Jones became aware of it some time in April, if not earlier. However, Respondent did not suspend Serrano until May. In some instances, even a delay of this length will not render it inappropriate to infer unlawful motivation from the timing. If a respondent has manifested antiunion animus in other ways, it may be reasonable to conclude that disciplinary action coming that long after protected activity (or, more precisely, that long after the employer became aware of the protected activity) was an example of such animus in action. The present record, how- ever, does not provide other substantial evidence of animus. As the time span increases between the date an employer be- came aware of protected activities and the date of disciplinary action, so does the possibility that the two events merely are coincidental. Although coincidence in time between union activity and discipline is one factor the Board may consider, mere coincidence is not sufficient evidence of animus. Neptco, Inc., 346 NLRB 18, 20 (2005), citing Chicago Tribune Co. v. NLRB, 962 F.2d 712, 717–718 (7th Cir. 1992). Based on the present record, I conclude that inferring animus from the timing of the particular events discussed above would not be appropri- ate. The Order Remanding also directed me to consider Serrano’s meeting with Human Resources Manager Mayfield on the day he was suspended. The Board stated, in part, that the “judge’s decision. . .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 in- ference that Serrano’s protected complaints to Mayfield played a role in Jones’ decision to recommend discipline against Ser- rano.” This meeting took place the day before Mayfield informed Serrano that he was being suspended. An unpleasant encounter with Supervisor Jones prompted Serrano to go to the human resources manager’s office. Serrano asked Mayfield for “cor- porate information,” presumably meaning the name and address of a corporate official to whom a complaint could be addressed. He explained to Mayfield that he wanted this information “so that ways I could get a petition together and we will get Lewie Jones out of here.” Serrano testified that Mayfield said “you know what, that is just too many complaints on Lewie . . . we’ve got to do some- thing about this right now.” According to Serrano, Mayfield told him to go back to work and that she would talk with Gen- eral Manager Mike Allen. Serrano further testified that later in the day, Mayfield came to him and reported that “everything was handled,” that she had talked with General Manager Allen, who was very upset with Jones, and that Allen was taking care of it. Without doubt, Serrano engaged in protected activity when he asked Mayfield for information he needed to send an em- ployee petition to corporate management. The word “petition” itself suggests a document signed by more than one person. Serrano’s use of the word “we” when he said “we will get Lewie Jones out of here” also implied that Serrano was acting for employees other than himself or at least was seeking to initiate group action. In either case, Serrano’s effort enjoyed the Act’s protection. Kvaerner Philadelphia Shipyard, 347 NLRB 390, 392 (2006), citing NLRB v. City Disposal Systems, 465 U.S. 822 (1984). It is well-settled Board law that the “ac- tivity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘con- certed activity’ as is ordinary group activity.” Cibao Meat Products, 338 NLRB 934 (2003). Moreover, even apart from Serrano’s use of the word “we,” Human Resources Manager Mayfield reasonably would have understood that Serrano was acting for other employees be- cause other employees also had complained about Supervisor Jones’ practice of swearing and yelling. Such conduct certainly affected working conditions. Circulating and signing a petition concerning working conditions and sending it to higher man- agement clearly falls within the Act’s protection. Igramo En- terprise, Inc., 351 NLRB 1337 (2007). The very close proximity of this protected activity to man- agement’s decision to suspend Serrano indeed raises some sus- picion concerning Respondent’s motivation, but I am not sure that the timing, standing by itself, would warrant drawing an inference of animus. However, the timing does not stand by itself. During the hearing, the General Counsel sought to amend the complaint to add an allegation that Respondent had violated Section 8(a)(1) of the Act by maintaining a rule prohibiting employees from discussing their compensation with each other. The rule no longer was in effect. Applying the principles which the Board articulated in Redd–I, Inc., 290 NLRB 1115, 1118 (1988), I denied the General Counsel’s motion to amend the complaint. However, as the General Counsel argued during the hearing, evidence regarding this rule still remains relevant to the issue of Respondent’s motivation. Indeed, it is quite relevant because it shows that Respondent had tried to chill the very same type of action which Serrano was trying to start, namely, employees discussing among themselves one of their conditions of em- ployment. Serrano clearly communicated to Human Resources Manag- er Mayfield that he intended to engage in such a discussion with other employees, because he told her that he wanted to circulate a petition protesting the way Supervisor Jones dealt CAMACO LORAIN MFG. PLANT 1195 with employees. Obviously, Serrano could not encourage em- ployees to sign such a petition without first discussing it. There is no logical reason to believe that Respondent would be less hostile to employee discussions about this particular working condition—the unpleasant environment created by Supervisor Jones’ swearing and yelling—than it was to em- ployee discussions about their wages. The fact that Respondent suspended Serrano almost immedi- ately after management learned that he intended to discuss working conditions with employees appears more sinister in light of the previous work rule prohibiting similar discussions. Accordingly, I conclude that unlawful motivation appropriately may be inferred from the timing of these two events, Serrano's disclosure to Mayfield that he intended to solicit employees to sign a petition about working conditions and his subsequent suspension, and I draw such an inference. Therefore, I further conclude that the General Counsel has established all of the initial four Wright Line elements. The credited evidence proves that Serrano engaged in union activi- ty. It also establishes that Serrano engaged in protected con- certed activity in the presence of Respondent’s human re- sources manager. Thus, the first two Wright Line criteria have been satisfied. Respondent’s suspension of Serrano soon there- after constitutes an adverse employment action sufficient to meet the third Wright Line requirement. The inference of un- lawful motivation arising from the timing of the suspension establishes the final Wright Line element. In sum, I conclude that Serrano’s protected activities were a substantial and motivating factor in Respondent’s decision to suspend him. In other words, management decided to act quickly, ostensibly because of its “no threats” policy intended to nip potential workplace violence in the bud, but also to nip Serrano’s contemplated protected activity in the bud. The combined force of both the lawful motivation and the unlawful motivation sufficed to cause management to suspend Serrano. Would the lawful motivation, by itself, have been strong enough to produce the same result? Therefore, Respondent must rebut the General Counsel’s case. To defeat the conclusion that Serrano’s suspension was unlawful, Respondent must prove by a preponderance of the evidence that it would have suspended Serrano in any event, even in the absence of protected activity. American Gardens Management Co., 338 NLRB 644, 645 (2002). Respondent asserts as its reason for suspending Serrano that he made a threatening statement. In assessing this defense, I keep in mind that an employer has a strong interest in maintain- ing a safe workplace. Similarly, an employer has a legitimate business interest in acting quickly after receiving a report of a threat, so that a potentially violent situation is prevented. Bridgestone Firestone South Carolina, 350 NLRB 526, 531 (2007) (The Board will not second-guess an employer’s efforts to provide its employees with a safe workplace, especially where threatening behavior is involved). In determining whether Respondent has met its rebuttal bur- den, I begin by considering whether Respondent’s asserted reason for suspending Serrano was pretextual. A finding of pretext defeats any attempt by a respondent to establish that it would have taken the adverse employment action even in the absence of protected activity. Rood Trucking Co., 342 NLRB 895, 898 (2004). The present facts raise the possibility of pretext because, alt- hough Respondent assertedly suspended Serrano for making a threat, most of the words attributed to Serrano do not, on their face, appear to be a threat. As discussed above, Leadman Frank Dellipoala testified that Serrano said to him, “this may be your domain, but that’s [pointing towards the door] my do- main” and “Lewie’s going to pay.” Those last words, “Lewie’s going to pay,” certainly might be a threat under some circum- stances, but it does not appear that management focused on them. Instead, management appears to have been concerned that Serrano told the leadman “this may be your domain but that’s my domain.” The “domain” comment attributed to Serrano does not sound like a threat. Indeed, to interpret it as threatening would require substantial “reading between the lines.” Moreover, the evi- dence does not establish that Serrano said these words with a menacing demeanor which could turn facially innocent words into a malicious message. When Respondent’s counsel examined Frank Dellipoala concerning Serrano’s demeanor, Dellipoala testified as follows: Q. Okay. And can you tell the Court what you remember about that situation? A. In the morning, real early, when the shift first started up, Sammie said to me, this may be your domain, but that’s my domain, and he pointed toward the door. And he said, and Lewie’s going to pay. Q. Okay. What was your impression of––was––was Sam angry when he said that? A. It seemed like he was angry, to me. What he meant by it, I don’t know. Q. Did he seem emotional? A. A little bit, yeah. From Dellipoala’s testimony, I find that Serrano was slightly angry when he made the putative threat. Dellipoala would not have described Serrano as a “little bit” emotional if Serrano had been a whole lot angry. Dellipoala's description does not de- pict someone so angry that he was about to let his emotions take over and control his conduct. Serrano's relatively mild anger hardly would communicate a message that Serrano con- templated taking some physical action against Jones and was in a state of mind to do it. Moreover, it seems significant that immediately after saying that it “seemed like he was angry, to me,” Dellipoala added, “What he meant by it, I don’t know.” It is reassuring to know that Dellipoala didn’t understand what Serrano meant because neither do I. So, in the absence of any other factor, it would be easy to conclude that Serrano did not, in fact, make a threat, and that there was no way Respondent reasonably could have believed Serrano had made a threat. That conclusion, in turn, would lead to the further conclusion that Respondent characterized Serrano’s words as a threat simply to have an excuse to suspend him before he could engage in the protected activity of circulat- ing a petition among employees. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1196 However, there is another factor which should be considered. Serrano himself considered the “domain” statement (which he denied making) to be a threat. Thus, according to Serrano, Human Resources Director Mayfield asked him if he made the statement that “this is Lewie’s domain, and that’s my domain out there.” Serrano testified that he told Mayfield “I would never make a comment like that, because I love life too much to ever put that type of thought into somebody’s else mind.” Ac- cording to Serrano, he then fell on the floor, held his stomach, and moaned. From this response, I infer that Serrano himself believed that making the statement in question would be mis- conduct. The record thus establishes that Serrano as well as Mayfield regarded the “domain” statement to be a serious impropriety. Therefore, I will not conclude that management seized upon this statement as a mere excuse for imposing discipline. Ac- cordingly, no finding of pretext bars consideration of Respond- ent’s rebuttal arguments and evidence. However, before begin- ning that analysis, I will devote the next paragraph to a small detail. It may be noted that Dellipoala quoted Serrano as saying to him “this may be your domain,” which would be equivalent to saying “this may be Dellipoala’s domain.” On the other hand, Serrano testified that Mayfield asked him if he had said “this is Lewie’s domain.” Mayfield’s testimony leaves unresolved the exact wording of her question to Serrano. If Serrano’s version is correct, then technically he could deny that he said “this is Lewie’s domain” even if he had told Dellipoala that this was his, Dellipoala’s, domain. In any event, resolving this detail still would leave unexplained why both Mayfield and Serrano considered the statement about domains to be threatening. Respondent’s brief on remand does not fully address the is- sue of whether Respondent would have disciplined Serrano in any event, regardless of protected activity. During Respond- ent’s oral argument, Respondent’s counsel stated, “Other em- ployees, such as Danny Clarkston were also suspended for violating this policy” against violence in the workplace. Essen- tially, Respondent contends that it treated Serrano as it had treated other employees, such as Clarkston, who presumably had not engaged in protected activity. During his testimony, Clarkston admitted that Respondent had suspended him in September 2005 for making a comment which Respondent regarded as a threat against another employ- ee, Ed McKinney. However, the fact that Clarkston did receive discipline in 2005 for making such a remark does not establish that Respondent has applied its policy evenly. That is because Clarkston did not receive discipline for a statement he admitted that he made in 2006, a statement which, on its face, clearly transgresses Respondent’s “no threats” rule. Clarkston admitted that sometime during the summer of 2006, he made the following remark to Supervisor Lewie Jones: “I told him I was mad, I told him that I would punch Karen [sic] in her pussy.” From the record, it is clear that Clarkston was referring to Human Resources Manager Karin Mayfield, who had told Clarkston to clock out and go home. Clarkston had wanted to stay to work overtime. Mayfield testified that she was not aware of any threats made by Clarkston against her. Crediting Clarkston, I conclude that he did tell Supervisor Jones that he was going to punch May- field, and further conclude that Jones did not report this threat to Mayfield. Jones’ failure to report the statement explains why Respond- ent failed to discipline Clarkston for making a clear and unam- biguous threat but did discipline Serrano for making a state- ment which, on its face, seems much less threatening. However, the explanation for this disparate treatment does not render it innocent. Respondent has admitted that Supervisor Jones was its agent. Although Jones ranked low in Respondent’s management struc- ture, that low rank does not negate his agency status. When Jones acted within the scope of his authority as agent, such action may be imputed to Respondent. Clearly, a first-line supervisor’s responsibilities include deciding when an employ- ee’s actions violate a company rule or otherwise are so unac- ceptable that higher management should be informed. Higher management necessarily depends on first-line super- visors to be its eyes and ears on the plant floor. When such a supervisor turns a blind eye or a deaf ear to conduct which violates a company rule or policy, it prevents management from imposing the discipline which otherwise would have resulted. The supervisor’s failure to perform the duty he owed Respond- ent does not change the fact that the supervisor’s action (or inaction) fell within the scope of his authority as Respondent’s agent. Therefore, Supervisor Jones’ condonation of Clarkston’s threat may be imputed to Respondent even though higher man- agement did not know about the threat. It seems highly likely that higher management would have disciplined Clarkston had it known about his “punch Karin” comment. As already mentioned, on another occasion, man- agement had disciplined Clarkston for another remark it had deemed a threat. Moreover, the record indicates management had disciplined other employees for making statements consid- ered threats. Considering the highly offensive nature of Clark- ston’s “punch Karin” remark, and considering that the subject of this threat was Human Resources Manager Mayfield herself, it appears quite certain that Clarkston would have been disci- plined had Mayfield known about his remark. In sum, by reporting Serrano’s ambiguous “threat” to higher management while failing to report Clarkston’s clearcut threat, Supervisor Jones caused Respondent’s disciplinary policy to be applied disparately. What inference properly may be drawn from such disparate treatment? The difference in treatment might either reflect that Jones harbored some hostility towards Serrano or that he showed favoritism towards Clarkston. The fact that Jones, in effect, “excused” Clarkston’s breach of a policy otherwise uniformly applied to all employees does not compel a conclusion that Jones was antagonistic to Serrano. It might be explained on the basis of favoritism towards Clarkston. Therefore, I would hesitate before concluding that the dis- parate treatment which Jones accorded Clarkston and Serrano reflected antiunion animus. However, at this point in the analy- sis, the issue does not concern the existence of such animus, which I already have found to exist. Rather, it concerns the effect of this animus on the decision to discipline Serrano. CAMACO LORAIN MFG. PLANT 1197 Respondent must show that the animus did not affect the out- come of the decision–making process. Even though Jones’ disparate treatment of Clarkston and Serrano does not, in my view, warrant an inference of animus, it nonetheless casts serious doubt on Respondent’s argument that it would have disciplined Serrano in any event. Consider- ing the real prospect of harm raised by Clarkston’s threat against Mayfield, Respondent had a legitimate business interest in acting quickly to discipline Clarkston. However, it did not. Assessing the significance of this disparate treatment does not put the Board in the position of second-guessing Respond- ent’s efforts to provide its employees with a safe workplace, a practice which the Board has eschewed. Bridgestone Firestone South Carolina, above. Rather, it only involves evaluating how consistently Respondent has applied its own policy. Incon- sistent application of the policy takes the probative wind out of Respondent’s sails. Supervisor Jones instigated the discipline of Serrano but failed to refer Clarkston for discipline even though Clarkston made a statement clearly more threatening than that made by Serrano. Supervisor Jones also knew of Serrano’s union activi- ty. Even assuming that the Serrano’s “domain” remark equaled Clarkston’s threat in seriousness, I would conclude that Re- spondent has not presented other persuasive evidence which would overcome the doubt raised by the disparate treatment of Clarkston and Serrano. Moreover, it is difficult to believe that Serrano’s unclear statement, for which he received a 3-day suspension, rises to the same level of seriousness as Clarkston’s unequivocal expression of intent to punch Human Resources Manager Mayfield. As the Board observed in International Baking Co. & Earthgrains, 348 NLRB 1133, 1138 (2006), it is not the law that an employer can prevail only by showing prior identical misconduct and discipline. However, where an employer dis- ciplines an employee who had engaged in protected activity, and the discipline ostensibly is for making a threat although the actual language attributed to the employee does not, on its face, constitute a threat, it is reasonable for the trier of fact to be a bit skeptical. Where the same employer also fails to discipline an employee who did make a clear and ugly threat, and this em- ployee is not shown to have engaged in protected activity, the skepticism deepens. An employer might address this skepti- cism, in part, by presenting evidence that employees in this particular workplace generally understood the words in ques- tion to be threatening. The record here does not establish that Respondent’s employees generally would understand the words in question to convey a threat. To the contrary, Lead Man Dellipoala testified that he didn’t know what Serrano meant. Respondent also might address the skepticism by showing that it had promulgated a rule identifying a particular expres- sion as a threat and prohibiting its use. Assuming that such a rule did not chill or discourage protected activity (as did Re- spondent’s rule forbidding employees from discussing their wages), its existence would contribute, at least, to the plausibil- ity of Respondent’s claim. (Whether it would suffice, by itself, to carry Respondent’s rebuttal burden is a different issue which need not be discussed here.) Respondent has not presented evidence that any rule had in- formed employees that it attached a special meaning to remarks such as Serrano’s “domain” statement and considered them unwelcome in the workplace. Respondent also has not shown that any other employee, after making a facially innocuous comment similar to Serrano’s “domain” statement, then en- gaged in threatening conduct or otherwise presented a danger. Additionally, the evidence does not establish that Respondent had disciplined any other employee, under its “no threats” rule, for making a puzzling but not obviously threatening statement of a tenor similar to Serrano's “domain” remark. Further, Re- spondent has not convincingly explained why it interpreted Serrano’s “domain” statement either as a threat of violence or as an indication that the employee might engage in violence. Moreover, although the evidence indicates that Supervisor Jones bears responsibility for the disparate treatment of Clark- ston and Serrano, it does not establish a reason for the disparity. Thus, the evidence does not prove that, but for Serrano's pro- tected activity, Jones would have ignored Serrano's “domain” statement in the same way he ignored (and thereby condoned) Clarkston's “punch Karin” statement. It isn't clear whether Jones knew of Serrano's most recent complaint to Mayfield, but he certainly was aware that this “pit bull” (in Jones' words) had previously spoken to Mayfield about the way Jones treated employees and had tried to organize a union. Respondent has admitted that Jones is its agent, and it has not presented any persuasive evidence or argument overcoming the general principle that the acts of an agent, within the scope of his authority, are attributable to the principal. Accordingly, Respondent has not carried its burden of establishing that it would have taken the same action against Serrano in the ab- sence of protected activity. Therefore, I conclude that Re- spondent’s suspension of Serrano violated Section 8(a)(1) and (3) of the Act and recommend that the Board so find. The Board specifically directed me to address whether Su- pervisor Jones or Lead Man Dellipoala had reported Serrano’s alleged threat to Human Resources Manager Mayfield and whether, if Jones had made the report, it would affect the find- ing in my original decision that Respondent would have disci- plined Serrano even in the absence of protected activity. Jones, rather than Dellipoala, made the report to Mayfield. Moreover, Jones failed to report Clarkston's threat to higher management, resulting in disparate treatment. For the reasons discussed above, Jones' involvement in both decisions is highly signifi- cant and shows the error of my earlier finding, which this deci- sion corrects. Discharge of Serrano Sometime during the latter half of August 2006, Plant Gen- eral Manager Mike Allen announced that Respondent was insti- tuting a new incentive system on a trial basis, and that it only would apply to one part of the plant, the section in which Ser- rano worked. The experimental program would increase the pay for all members of a team if the team's output met a speci- fied production standard. If the team did not produce at the specified rate, no member of the team would receive the addi- tional “incentive” pay. Respondent intended this system to reward teamwork and thereby improve production. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1198 Allen informed the affected employees that the incentive would be a $1 per hour increase in wages. The production standard consisted of 60 units per hour. After the meeting, Serrano expressed his skepticism to other employees. The record does not establish that any member of management heard these particular comments. Although Allen was the plant’s general manager, during this particular week, when the incentive plan was implemented, Supervisor Lewie Long was on vacation. Therefore, Allen assumed some of Long’s responsibilities and spent more time than usual in the area where Long’s employees worked. Respondent ran more than one shift. According to Allen, employees on other shifts demonstrated that they could meet the production standard. About 6 a.m. on August 23, 2006, Allen spoke with Serrano in Serrano’s work area. According to Allen, Serrano said “he wasn’t going to bust his butt to make any more” because it was “not worth the buck.” Allen testified that Serrano made this remark in front of oth- er employees and that it “broke my spirit” when it happened. He believed that Serrano could meet the standard because em- ployees on other shifts already had met the standard. I infer that Allen also took offense because Serrano’s stated unwill- ingness to work would keep the whole team from receiving the incentive. Allen did not take immediate action, but waited through the day. He explained he had believed Serrano might come to him to disclaim the earlier statement. However, Serrano did not do so and Allen discharged him. Serrano’s testimony differs in some respects. According to Serrano, Allen came to Serrano’s workplace and asked why Serrano had not made 60 parts per hour. Serrano testified: I said there is a communication error between you and Lewie, because Lewie Jones knows that I cannot run this cell. I have been replaced on this cell three times because I cannot consistently make the parts 60 an hour. And I feel like since I can’t make this number, you know, I feel like you’re kind of like coming down on me. I said, Mike, I’m not lazy. I do the best job I could do, but I seriously cannot handle this machine and I cannot make 60 parts an hour consistently. So . . . he put his hand up, he says, Sam, I heard you said a dollar’s not enough. Is that true? I said, Mike, con- sidering what you’re saying, none of us feel that way. There’s a lot of people that do not feel the dollar is not enough. I said considering me, myself, a dollar’s not enough because I cannot do 60 parts an hour on this ma- chine, not consistently. And considering how the ma- chines run, that I wasn’t going to be able to make it. Some other employees witnessed this conversation between Allen and Serrano. I do not rely upon the testimony of employ- ee witness Carl Donan because his recollection was sketchy and sometimes inconsistent with other accounts. For example, Donan stated that the conversation between Allen and Serrano, discussed above, took place “about three months” or “a couple of months” before Serrano’s discharge. Other witnesses place the discharge on the same day as this conversation. Employee witness Tammy Potts recalled Allen telling Serra- no “that he better start producing more parts. And Sammy [Serrano] had told him that he’s doing his best. And then Sammy told him that he didn’t agree on that dollar, and that he wasn’t the only one that didn’t agree on it.” Potts described Allen’s demeanor as “angry.” Leadman Frank Dellipoala testified that Allen asked Serrano about his production, “why his numbers would go up and come down.” Serrano “told him he comes in in the morning, he feels good. He goes later on in the day I get tired, and this is too much work and I’m not going to do it.” Allen then asked Dellipoala if he had anyone else who could run the machine. Dellipoala gave Allen the names of some employees, but added that they did not have Serrano’s experi- ence and would not produce as much as Serrano did. The accounts of Allen, Serrano, Potts, and Dellipoala differ in some details but, in general paint a fairly consistent picture of what transpired. The differences in testimony do not, in my view, suggest any attempt to conceal or distort, but rather re- flect the kind of natural variations which result from differences in memory and viewpoint. Based upon my observations of the witnesses, I have placed more trust in the testimony of Dellipoala than that of Serrano. To the extent that Dellipoala’s testimony conflicts with that of Serrano or other witnesses, I resolve such conflicts by crediting Dellipoala. However, Serrano’s own testimony establishes that Re- spondent had a legitimate business justification for discharging Serrano. He stated unequivocally that he could not do the work expected. Thus, Serrano stated to Plant Manager Allen, “I seri- ously cannot handle this machine and I cannot make 60 parts an hour consistently.” Moreover, objective evidence supported Serrano’s admis- sion. His production fell short of the 60–parts–per–hour stand- ard. Serrano not only claimed to be unable to meet the standard but proved his claim by failing to meet the standard. Allen testified that other employees had demonstrated their ability to meet the standard, and I credit that testimony. There- fore, Allen might reasonably infer that Serrano did not meet the standard because he was unwilling to “bust his butt.” When asked, Leadman Dellipoala gave this assessment of Serrano: “When he wanted to work, he was one of the best on the job, but he didn’t always want to work, in my opinion.” The words which Allen attributed to Serrano seem consistent with Dellipoala’s assessment. Following the Board’s Wright Line framework, I conclude that the General Counsel has established that Serrano had en- gaged in some protected activity and that Respondent had knowledge of it. The government also has proven that Re- spondent took an adverse employment action against Serrano by discharging him. However, the General Counsel has not proven, by a prepon- derance of the evidence, a connection between Serrano’s pro- tected activity and his discharge. But even assuming that the government had established such a nexus, I conclude that Re- spondent has met its rebuttal burden. CAMACO LORAIN MFG. PLANT 1199 Plant Manager Allen, seeking to improve both productivity and quality, drew on his understanding of Japanese manufac- turers that had organized their employees into teams and re- warded each worker based on the performance of his or her team. Thus, he was introducing something entirely new to this plant and its employees. Accordingly, Respondent cannot be expected to produce ev- idence that it had treated other employees similarly in similar instances. There were no similar instances because of the new- ness of the program. However, the Act does not require an employer to retain an employee who is unable to meet its production standards. Thus, Section 10(c) of the Act provides in part that “No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any backpay, if such individual was sus- pended or discharged for cause.” An inability to meet an employer’s nondiscriminatory stand- ards certainly constitutes “cause.” Serrano himself admitted that he told Respondent’s plant manager the following: “I seri- ously cannot handle this machine and I cannot make 60 parts an hour consistently.” His failure to meet those standards made this profession of inability convincing. Respondent discharged Serrano for being unwilling to try to meet its standards, that is, for being unwilling to “bust his butt.” Serrano's testimony, on the other hand, indicates he professed an inability rather than an unwillingness. However, Respond- ent had reason to believe that unwillingness contributed to Ser- rano’s failure to meet the standard because other employees, on a different shift, had indeed met the standard. It does not matter whether Serrano was unwilling or unable to meet the standards. Rather, what matters is that Serrano did not do so and said he could not do so. An employer need not keep on the payroll an employee who both failed to measure up and who predicts his continuing failure to measure up. Remanded Issue 8 In its Order Remanding, the Board directed me to make cred- ibility findings with respect to Serrano’s conversation with Allen which led to Serrano’s discharge. I have done so above. The Board further directed me to determine how these find- ings affect my conclusion that Serrano’s discharge was lawful. I regret the insufficient reasoning in my initial decision, but respectfully adhere to the conclusion that Serrano’s discharge was lawful. After examining the evidence anew and with the proper thoroughness specified by the Board, I conclude that Respond- ent reasonably believed that Serrano’s future performance would fall below its standards and that Serrano was unwilling to expend the effort necessary to meet those standards. There- fore, I recommend that the Board dismiss these allegations. REMEDY To remedy the unfair labor practices found herein, Respond- ent must make Sam Serrano whole, with interest, for all losses he suffered because Respondent suspended him on or about May 30, 2006. Respondent must also post the notice attached hereto as Appendix A, in the manner and for the duration speci- fied below. Because I have concluded that Respondent lawfully dis- charged Serrano, I do not recommend that the Board order Re- spondent to reinstate him to his former position or to any sub- stantially equivalent position, and do not recommend that the Board order Respondent to make him whole for losses resulting from his discharge. CONCLUSIONS OF LAW 1. The Respondent, Camaco Lorain Manufacturing Plant, is an employer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. 2. The Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, UAW, Region 2B, is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent violated Section 8(a)(3) and (1) of the Act by suspending its employee, Sam Serrano, on or about May 30, 2006. 4. Respondent did not violate the Act in any other manner al- leged in the complaint. On these findings of fact and conclusions of law and on the entire record in this case, I issue the following recommended1 ORDER The Respondent, Camaco Lorain Manufacturing Plant, Lo- rain, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Suspending any of its employees because that employee engaged in union activity and/or other concerted activity pro- tected by the Act. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights to self– organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choos- ing, or to engage in concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to re- frain from any and all such activities. 2. Take the following affirmative action necessary to effec- tuate the policies of the Act. (a) Make employee Sam Serrano whole, with interest, for all losses he suffered because Respondent unlawfully suspended him on or about May 30, 2006. (b) Within 14 days after service by the Region, post at its fa- cilities in Lorain, Ohio, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 8, after being signed by the Re- spondent’s authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 1 If no exceptions are filed as provided by Section 102.46 of the Board’s Rules and Regulations, these findings, conclusions, and rec- ommended Order shall, as provided in Section 102.48 of the Rules, be adopted by the Board, and all objections to them shall be deemed waived for all purposes. 2 If this Order is enforced by a judgment of the United States Court of Appeals, the words in the notice reading “Posted by Order of the National 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.” DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1200 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasona- ble steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other mate- rial. In the event that, during the pendency of these proceed- ings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since May 30, 2006. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a responsible official on a form provided by the Regional Director attesting to the steps that the Respondent has taken to comply. Filename: 356143.doc Directory: H:\VOLUMES\356\UNBIND\Unbind bat3 Template: C:\Documents and Settings\philliar\Application Da- ta\Microsoft\Templates\NewD&O.dot Title: BARBARA COPE, A SOLE PROPRIETOR, Subject: Author: OCIO Keywords: Comments: Creation Date: 12/8/2011 9:42:00 AM Change Number: 5 Last Saved On: 12/6/2012 9:49:00 AM Last Saved By: philliar Total Editing Time: 21 Minutes Last Printed On: 7/10/2014 7:40:00 AM As of Last Complete Printing Number of Pages: 19 Number of Words: 15,879 (approx.) Number of Characters: 90,511 (approx.)