Mesker Door, Inc.

MESKER DOOR, INC. 357 NLRB No. 59 591 Mesker Door, Inc. and United Steelworkers of Ameri- ca, AFL–CIO–CLC and Rollie Powell and Cecil Herren. Cases 10–CA–035863, 10–CA–035938, 10–CA–036270, 10–CA–036284, 10–CA–036363, 10–CA–036372, and 10–CA–036422 August 24, 2011 DECISION AND ORDER BY CHAIRMAN LIEBMAN AND MEMBERS PEARCE AND HAYES On November 13, 2007, Administrative Law Judge Keltner W. Locke issued the attached decision. The General Counsel filed exceptions and a supporting brief. The Charging Party Union, Charging Party Rollie Pow- ell, and Charging Party Cecil Herren each filed cross- exceptions and a supporting brief. The Respondent filed answering briefs to the exceptions and cross-exceptions. The Charging Parties filed a joint reply brief. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the decision and the record in light of the exceptions,1 cross-exceptions, and briefs and has decided to affirm the judge’s rulings, findings, and conclusions only to the extent consistent with this decision, and to adopt the judge’s recommended Order as modified and set forth in full below.2 This case involves alleged unfair labor practices, the majority of which were committed by the Respondent during negotiations with the Union for an initial contract. The complaint also alleges that after a year of negotia- tions, the Respondent further violated the Act by with- 1 There are no exceptions to the judge’s findings that the Respondent violated Sec. 8(a)(1) by: (1) warning employee Janice Medlock in March 2005 not to discuss medical leave and vacation issues with other employees; (2) threatening employees, during contract negotiations in September and October 2005, that there would be no pay increases because of recently filed unfair labor practice charges against the Re- spondent, and that negotiations would not progress while the charges remained pending; and (3) implicitly threatening two employees, in a speech on May 4, 2006, that they should find jobs elsewhere rather than file charges and engage in other protected activity. There are also no exceptions to the judge’s findings that the Respondent violated Sec. 8(a)(1), (3), and (4) by: (1) suspending employee Rollie Powell in October 2005, and assessing him negative attendance points because he filed charges against the Respondent and met with a Board agent inves- tigating the charges; and (2) suspending Powell in July 2006, and de- moting him to a lesser-paying job based in part on the October 2005 unlawful discipline. 2 In accordance with our decision in Kentucky River Medical Center, 356 NLRB 6 (2010), the Order shall require that backpay and other monetary awards be paid with interest compounded on a daily basis. Also, the Order will provide for the electronic posting of the notice in accord with J. Picini Flooring, 356 NLRB 11 (2010). For the reasons stated in his dissenting opinion in J. Picini Flooring, Member Hayes would not require electronic distribution of the notice. drawing recognition from the Union and unilaterally im- plementing changes in various terms and conditions of employment of unit employees. The judge found many of the alleged violations, and many of those findings are not contested by the Re- spondent. See footnote 1, above. Although one of those uncontested violations was the plant manager’s threat during a May 4, 2006 speech that two employees should find jobs elsewhere, the judge dismissed allegations that the speech contained additional threats that violated Sec- tion 8(a)(1). In addition, the judge dismissed allegations that the Respondent violated Section 8(a)(1) by disciplin- ing employee Anthony Lyles; that it violated Section 8(a)(5) and (1) by withdrawing recognition from the Un- ion and unilaterally implementing changes in terms and conditions of employment; and that it violated Section 8(a)(4) and (1) by discharging employee Cecil Herren. The General Counsel and the Charging Parties have excepted to the dismissal of the additional 8(a)(1) threat allegations regarding the plant manager’s speech, and to the dismissal of the 8(a)(5) and (1) allegations. The Charging Parties additionally except to the dismissal of the 8(a)(1) allegation regarding Anthony Lyles and to the dismissal of the 8(a)(4) and (1) allegations regarding Cecil Herren. For the reasons discussed below, we re- verse the judge and find that the Respondent committed these additional violations, except with regard to Herren.3 I. THE DISCIPLINE OF ANTHONY LYLES On June 8, 2005, the Respondent’s assistant manager, James Smith, received a complaint from employee Ken- neth Small that Lyles and employee Robert Bowser were “talking about union business on company time.” Smith informed Lyles and Bowser of the complaint, without identifying Small. Smith instructed them that they “shouldn’t be talking about the Union on company— Mesker Door’s time” and that they were to confine their union discussions to break- and dinner time. Suspecting that Small had made the complaint, Lyles confronted Small and threatened to physically harm him and damage his truck. The next day, the Respondent suspended Lyles for 1 day, without pay, “for making threatening remarks to Kenneth Small’s person and vehicle.” The suspension was later reduced to a written warning and loss of a day’s pay. 3 We adopt the judge’s finding that the Respondent did not violate Sec. 8(a)(1) and (4) by discharging Cecil Herren in June 2006. We find that, even assuming that the General Counsel met his initial burden under Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the credited evidence shows that plant manager, Roth, would have discharged Herren anyway based on his demonstrated and repeated unwillingness to follow super- visory instruction. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 592 Applying Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), the judge dismissed the allegation that the Re- spondent violated Section 8(a)(1) by disciplining Lyles for discussing union matters with Bowser. The judge found that the General Counsel had not met his initial burden under Wright Line of proving that antiunion ani- mus was a motivating factor for Lyles’ discipline, despite finding that the Respondent knew that Lyles had engaged in protected activity when discussing the Union with Bowser, and that Lyles’ discipline was an adverse em- ployment action. The judge found that the General Counsel failed to establish that prohibiting Lyles from discussing the Union during worktime constituted “anti- union animus [that] was a substantial motivating factor in the [Respondent’s] decision to suspend Lyles.” Never- theless, the judge continued the Wright Line analysis, explaining that, had the General Counsel satisfied his initial burden, he would have found that the Respondent failed to meet its rebuttal burden due to evidence of dis- parate treatment.4 Contrary to the judge, we find that the General Coun- sel established that Lyles’ 1-day suspension was unlaw- ful. Wright Line requires the General Counsel to make an initial showing that an employee’s protected conduct was a motivating factor in an employer’s decision to take adverse action against the employee. See Williamette Industries, 341 NLRB 560, 562 (2004). The elements commonly required to support a finding of discriminato- ry motivation are union activity by the employee, em- ployer knowledge of that activity, and antiunion animus by the employer. Id.5 Proof of discriminatory motiva- tion can be based on direct evidence or can be inferred from circumstantial evidence based on the record as a whole. See Fluor Daniel, Inc., 304 NLRB 970, 970 (1991). To support an inference of unlawful motivation, the Board may look to, among other factors, disparate treatment of the affected employee and the timing of the discipline relative to the employee’s protected activity. See Embassy Vacation Resorts, 340 NLRB 846, 848 (2003). Here, as stated above and found by the judge, Lyles engaged in protected activity when he discussed the Un- ion with his coworker, and the Respondent was aware of such activity. The Respondent demonstrated antiunion animus through its violations of Section 8(a)(1), (3), (4), and (5). In addition, contrary to the judge, we find that 4 The Respondent does not except to the judge’s finding that it en- gaged in disparate treatment. 5 The judge incorrectly described the General Counsel’s initial bur- den as including a fourth “nexus” element. the General Counsel established that Lyles’ protected activity was a motivating factor in his suspension. We base our finding of unlawful motivation, in part, on the evidence of disparate treatment cited by the judge. The judge pointed to Small who, 1 month after the inci- dent with Lyles, threatened to hit an employee “up the side of the head” with a doorframe. Rather than suspend Small for a day, as it did to Lyles, the Respondent merely issued Small a written warning.6 We agree with the judge that the “significantly harsher discipline” meted out to Lyles constituted disparate treatment of two simi- larly situated employees. That disparate treatment, along with the timing of Lyles’ discipline, just 1 day after his union discussion, fully supports a finding that Lyles’ discipline was unlawfully motivated by the Respondent’s animus toward his union activity. See Sears, Roebuck & Co., 337 NLRB 443, 445 (2002). Turning to the Respondent’s Wright Line rebuttal bur- den to establish that Lyles would have been disciplined and docked a day’s pay even in the absence of his union activity, the judge found, and we agree, that the Re- spondent’s case is undermined by its disparate discipline of Lyles.7 Accordingly, we conclude that Lyles was dis- ciplined in violation of Section 8(a)(1). II. THE PLANT MANAGER’S SPEECH ON MAY 4, 2006 The judge found that the Respondent’s plant manager, George Roth, violated Section 8(a)(1) in a speech to em- ployees on May 4, 2006, by implicitly threatening two employees in telling them to either cease filing unfair labor practice charges and engaging in other protected activity, or seek employment elsewhere.8 However, the judge dismissed complaint allegations that Roth made additional unlawful threats during the speech. Viewing the speech as a whole, we reverse the judge and find those additional 8(a)(1) violations. A. Background In March 2005, the Union was certified as the collec- tive-bargaining representative of a unit of production and maintenance employees at the Respondent’s Huntsville, Alabama manufacturing plant. The parties commenced bargaining in April 2005, and met on 22 occasions over 6 After Small received his written warning, the Union requested that Lyles’ 1-day suspension be similarly reduced to a written warning and that Lyles receive backpay. The Respondent refused to pay Lyles backpay, but it did change his suspension to a written warning. 7 The Respondent’s partial amelioration of its disparate treatment by changing the suspension to a written warning, which occurred only after the Union challenged the disparity and which still left Lyles short a day’s pay, does not undermine our conclusion that the Respondent acted unlawfully. 8 As noted above in fn. 1, the Respondent does not except to this finding. MESKER DOOR, INC. 593 the course of a year. They failed to reach agreement by their last bargaining session on May 3, 2006. The Respondent’s attorney, William Kaspers, was its lead negotiator and admitted agent. The Union was rep- resented by a four-person negotiating team that included unit employee Rollie Powell, who filed several of the unfair labor practice charges herein, some of which al- leged conduct by Kaspers that the judge found unlawful. Specifically, he found that Kaspers violated 8(a)(1) by threatening the employee negotiators during bargaining sessions in September and October 2005 that unit em- ployees would not receive pay increases because charges had been filed against the Respondent. The judge further found that Kaspers violated Section 8(a)(1), (3), and (4) by suspending Powell in October 2005, and assessing him negative attendance points because he met with a Board agent who was investigating the charges.9 Approximately 1 week before the last bargaining ses- sion on May 3, 2006,10 Powell and fellow unit employee Regan Long resigned from the Union’s negotiating team. On May 4, Roth gave a speech to all unit employees. The complaint alleges that the speech contains several 8(a)(1) threats. Roth’s May 4 speech, in its entirety, con- sisted of the following:11 Good news! We hit the bonus numbers again last month. The bonus checks for last month will be about $100 per person, which equates to 62 [cents] an hour. I apologize for reading this letter, but it seems like every time we turn around or say anything, somebody files another charge about it with the NLRB. During the past 12 months, the Company gave 3 employees in the plant and warehouse 20 days off from work so that they could negotiate in good faith with the Company and try to get a collective bar- gaining agreement between the Steelworkers Union and the Company that made sense and was accepta- ble to everyone. Between you and me, it should not have taken 20 days to put together a collective bargaining agree- ment. We had an agreement with the SheetMetal [sic] Workers until the employees decided to get rid of that union, and after the Sheetmetal [sic] Workers were thrown out, we took many of the things that 9 As noted in fn. 1, the Respondent did not except to the judge’s findings of violations committed by Kaspers. 10 All subsequent dates are in 2006, unless otherwise indicated. 11 The quoted text is taken from the Respondent’s script for the speech, which is in the record. The judge found that Roth delivered the speech substantially as it appears in writing and that any deviations from the written text were inconsequential. were in the union contract and put them into an em- ployee handbook. I understand that some changes were made to certain parts of the handbook during the last couple of years that upset a lot of people. However, 20 days of bargaining should have been more than enough time to address those issues. I’m told that the principal reason that the parties spent 20 days bargaining and still don’t have an agreement is that the employee members of the ne- gotiating committee appear to have their own agen- da. One has been more concerned about where he parks than how the plant operates, and when it got to economics, insisted that a truckdriver [sic] position and rate of pay be included in the contract, even though we no longer have a truck or a truckdriver’s position. That’s nothing more than letting personal self-interest predominate over what’s in the best in- terests of all employees and the Company. A year ago, they apparently told many of you that if the union was voted in, they would negotiate a written contract with certain guarantees. However, when the contract negotiations finally get to [the] point where it’s time to negotiate the terms that real- ly matter—wages, profit-sharing, and other cost is- sues that are generally referred to as “economic items”—two of the three employees that we gave 20 days off to negotiate a contract suddenly decide to resign from the Union’s negotiating committee ap- parently so that they can dedicate their time and ef- forts to filing and pursuing allegations with the Na- tional Labor Relations Board. That’s nuts. Since in- terest in the Steelworkers surfaced a little more than a year ago, they have either filed or supported the filing of dozens of allegations with the National La- bor Relations Board. The NLRB has yet to find the Company guilty of any of the alleged violations. Admittedly, several of the charges were settled last August—not because the Company had done any- thing wrong, but instead because it would have cost more to proceed with the defense than it cost to pay 2-time convicted felony child abuser a few thousand bucks to end those proceedings. The only person who wins when charges are filed with the NLRB is the Company’s lawyer. Personal- ly, I think William Shakespeare was right when he suggested killing all the lawyers. Some of you have probably heard the joke, “What do you call 500 law- yers at the bottom of the ocean? . . . A good start.” With all of the charges and allegations that they and others have filed with the NLRB, the Company has had to have a lawyer present at all 20 of the bar- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 594 gaining sessions to insure that we’re not inadvertent- ly doing something that they might turn into yet an- other NLRB charge. Since the Steelworkers came in a year ago, the Company has paid the Company’s lawyer over $200,000 to protect the Company’s interests against the charges that they and others have made or threat- ened to make. $200,000 that otherwise could have gone into improving life here in the plant. That’s nuts. The only thing that filing charges with the NLRB does, other than make the Company’s lawyer rich, is continue to foster an adversarial us-versus-them atti- tude. Personally, I don’t really care whether we op- erate under a union contract or not. We’ve operated under a union contract and made money sometimes and not made money other times, and we’ve operat- ed without a union and made money sometimes and not made money other times. What doesn’t work, however, and never will, particularly in competitive times when we’re com- peting against doors made in China, is the adversari- al us-versus-them environment that they are attempt- ing to foster with all of the charges they file with the NLRB. That old saying, “a house divided cannot stand” certainly applies to an industrial setting. I’m not saying that the union or the employees who sup- ported it are solely to blame for the adversarial us- versus-them environment. However, it all has to stop, because it’s negative, counterproductive, and very detrimental to the long term viability of this op- eration and this Company. I have been told that early on in the negotiations, one man said that he didn’t care whether the Com- pany went out of business, and another has very re- cently said that if he didn’t get his way, he’d put the Company out of business. Well, too many of us have worked too long and too hard for anyone to se- riously consider putting this Company out of busi- ness or even talking about it. If that’s where they are today, then they should find another job elsewhere and stop infecting the rest of us with all of their neg- ativity. I expect that as soon as I finish talking, they will say that I’m all wet and that they know what’s best. My idea of what’s best is when we can leave the us- versus-them attitude on the sideline and be produc- tive enough that we can share monthly bonus checks of over $300. We’re all in this to make a living and feed our families. We don’t show up for work in the morning to put this Company out of business. And, anyone who’s so unhappy here that you think you need to put this Company out of business needs to move on, find another job, and leave the rest of us the hell alone. I will give you a good letter of refer- ence. It is not in the best interest of you or the com- pany to stay in a job you don’t like where you are not happy. Life is too short. B. The Judge’s Decision The judge found that Roth’s description of two “un- happy” employees was, in context, a reference to Powell and Long, and that his statement that they should find other jobs was an 8(a)(1) implied threat of discharge un- der settled precedent holding that such statements sug- gest that support for a union is incompatible with contin- ued employment. Jupiter Medical Center Pavilion, 346 NLRB 650, 651 (2006); Paper Mart, 319 NLRB 9, 9 (1995) (finding unlawful employer statement that if em- ployee was not happy, the employee should seek em- ployment elsewhere). The judge found that the statement also “implie[d] that engaging in protected activity— filing charges with the Board—was incompatible with continued employment,” and was thus unlawful because it “interfered with an employee’s right to file charges with the Board . . . [and] to engage in union activities, such as serving on the Union’s bargaining committee.”12 The judge found, however, that Roth’s speech was not unlawful in any other respect. He rejected the complaint allegation that Roth threatened employees that filing charges with the Board was futile, noting that Roth never “state[d] explicitly that filing an unfair labor practice charge was futile and, indeed, he did not use the word ‘futile’ at all.” The judge concluded instead that Roth’s remarks about the effect of filing Board charges were expressions of opinion protected by Section 8(c) of the Act. As to the complaint allegation that Roth additionally threatened employees by stating that [T]he Company has paid the Company’s lawyer over $200,000 to protect the Company’s interests against the charges . . . $200,000 that otherwise could have gone into improving life here in the plant[,] the judge acknowledged that “employees reasonably would understand Roth to mean that the Respondent would have used the $200,000 to improve their working conditions in some unspecified way.” Nonetheless, the judge recom- mended dismissing this 8(a)(1) allegation, noting that Roth did not specifically state that the Respondent had taken 12 As stated in fn. 1, the Respondent did not except to this 8(a)(1) finding. MESKER DOOR, INC. 595 “money earmarked to improve working conditions and spen[t] it instead on legal representation.” The General Counsel excepted, and the Charging Par- ties cross-excepted, to the judge’s dismissal of these 8(a)(1) allegations. In the context of the Respondent’s speech as a whole, we find merit in their exceptions. C. Analysis The Board has long held that “an employer has a fun- damental right, protected by [Section] 8(c) of the Act, to communicate with its employees concerning its position in collective-bargaining negotiations and the course of those negotiations.” United Technologies Corp., 274 NLRB 1069, 1074 (1985) (footnotes omitted), enfd. sub nom. NLRB v. Pratt & Whitney, 789 F.2d 129 (2d Cir. 1986). This includes informing employees of the status of negotiations and the employer’s version of the causes leading to their breakdown. Proctor & Gamble Mfg., 160 NLRB 334, 340 (1966). An employer’s right to communicate with employees about these matters is not unlimited, however. Threats of adverse consequences for filing charges with the Board that are embedded in employer communications to em- ployees transform 8(c) statements into 8(a)(1) violations. M. K. Morse, 302 NLRB 924, 930 (1991); S. E. Nichols, Inc., 284 NLRB 556, 558, 586 (1987). Where, as here, certain statements in an employer’s speech are alleged as unlawful, the Board analyzes the speech “as a whole” in determining whether any individual statement violates Section 8(a)(1). See Homer D. Bronson Co., 349 NLRB 512, 513 (2007); Stanadyne Automotive Corp., 345 NLRB 85, 87–90 (2005). Further, in accommodating employer expression permitted by Section 8(c) with em- ployees’ right to be free from threats prohibited by Sec- tion 8(a)(1), we abide by the Supreme Court’s admoni- tion that any balancing of th[e]se rights must take into account the economic dependence of the employees on their employers, and the necessary tendency of the former, because of that relationship, to pick up intended impli- cations of the latter that might be more readily dis- missed by a more disinterested ear. NLRB v. Gissel Packing Co., 395 U.S. 575, 617 (1969). We thus view employer statements “from the standpoint of em- ployees over whom the employer has a measure of econom- ic power.” Henry I. Siegel Co. v. NLRB, 417 F.2d 1206, 1214 (6th Cir. 1969). Evaluating Roth’s speech from this perspective, we find merit to the General Counsel’s addi- tional allegations. Roth unlawfully threatened employees with economic loss by stating that the multiple charges filed against the Respondent had forced it to incur more than $200,000 in legal fees that “could have gone into improving life here in the plant.” The judge considered this statement in isolation and found that it was too ambiguous to consti- tute an unlawful threat to withhold economic benefits. Our dissenting colleague takes a similarly isolated view of Roth’s statement. However, viewed in the context of Roth’s other statements about improving life at the plant, we find that the threat is readily apparent.13 We rely particularly on Roth’s statements concerning bonuses. Employers traditionally award bonuses to em- ployees as a means of improving economic life at a workplace, and the Respondent had a bonus award pro- gram in place at the time of Roth’s speech. As noted, Roth highlighted that program at the outset of his speech by announcing that all employees would be receiving $100 bonuses. He did not talk about bonuses again until the end of his speech, when he cited much higher amounts. Specifically, Roth told employees that if they could “leave the us-versus-them attitude on the sideline and be productive enough,” they could receive “monthly bonus checks of over $300.” Contrary to the judge and our dissenting colleague, we find that Roth’s statement about the $200,000 in legal fees that “could have gone into improving life here at the plant” is not ambiguous when properly considered in context with his statements about employee bonuses. Both sets of statements centered on Roth’s criticism of unfair labor practice charges that he believed were foster- ing an “us-versus-them attitude” at the plant. There was the $200,000 the Respondent spent to defend those charges and Roth’s suggestion of improved bonuses of over $300 absent those charges. We find that Roth’s statement about the $200,000 reasonably conveyed the message that an additional $200,000 would have been allocated to fund bonuses of over $300, instead of $100, had employees refrained from filing charges.14 13 Contrary to our colleague’s assertion in fn. 2 of his dissent, the threat of economic loss violation that we find is fully in accord with complaint par. 14, alleging that employees were told that charge filing was “costing the Respondent money that would have otherwise benefit- ted the employees.” The General Counsel argued to the judge that this was an allegation of reduced bonuses because of the charge filing, and the judge indicated several times in his analysis that he understood the substance of this complaint as a “threat” allegation. 14 The coerciveness of Roth’s statement was heightened by his threat elsewhere in the speech to discharge two employees for filing Board charges, and by Kaspers’ dual role as the Respondent’s attorney and a management spokesman, whose conduct was the subject of several of the charges. Essentially, Roth told the employees that their charge- filing activity not only took money out of their own pockets, it put that money into the pockets of the very person whose wrongful actions they opposed. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 596 In Great Western Produce, 299 NLRB 1004 (1990), the Board found a violation based on similar conduct. There the respondent’s co-owner told two employees who were named in one of several charges filed against the company that “the charges were costing him money, that only the lawyers were benefitting, and that neither the Union nor he were gaining anything from the NLRB proceedings.” 299 NLRB at 1023. The Board adopted the judge’s finding that the reference to money lost to the lawyers is essentially a statement saying that the unionization process was costing the employees money, for it would have gone to them had they not begun the process . . . [and] . . . violates Section 8(a)(1) for it attempts to teach the les- son that unionization is self-defeating and thus a futili- ty. Id. As in Great Western, Roth’s statement—that the $200,000 spent defending against the charges could have been spent on improving life at the plant—sent the message that filing charges was a futile act that cost employees larger bonus- es.15 Roth’s statement that “[i]t all has to stop” was unlaw- ful as well. As the Supreme Court has explained, filing charges with the Board is a vital employee right designed to safeguard the procedure for protecting all other em- ployee rights guaranteed by Section 7 and, therefore, “it is unlawful for an employer to seek to restrain an em- ployee in the exercise of his right to file charges.” NLRB v. Scrivener, 405 U.S. 117, 121–122 (1972), quoting Nash v. Florida Industrial Commission, 389 U.S. 235, 238 (1967). By telling employees that their charge filing “has to stop,” Roth interfered with the exercise of their statutory rights.16 15 We reject our colleague’s suggestion that Great Western may be of limited precedential value because, in his view, it is unclear whether exceptions were filed to the “money-lost-to-the-lawyers” unlawful statement, and because the case has not been cited as supporting prece- dent for this violation until today. There is no indication that excep- tions were not filed to this violation found by the judge. Further, the Board expressly relied on this violation (committed by co-owner Vic Crispo) as evidence of animus in finding that employee Don Lowell was unlawfully discharged. See 299 NLRB at 1007. Finally, the hold- ing in a decision that has never been overruled or even questioned does not cease to stand as precedent for not having been cited previously. 16 Our colleague contends that Roth’s statement that filing charges “has to stop” was not encompassed within any complaint allegation, and was not argued by the General Counsel as a violation in his brief on exceptions. We disagree. The General Counsel argued in his excep- tions brief (at 10) that Roth unlawfully stated in his speech that filing charges “has to stop,” and the entirety of his speech, including this statement and others, is reasonably encompassed within par. 13 of the complaint alleging that employees were told that “filing charges . . . was futile.” In any event, even were the statement not encompassed by complaint par. 13, we would still find the violation under the two-part In sum, we find that, when considered in all of its parts, Roth’s speech to employees on May 4 violated Section 8(a)(1).17 III. WITHDRAWAL OF RECOGNITION AND SUBSEQUENT UNILATERAL CHANGES On May 8, 4 days after Roth’s speech and 13 months after the Union’s certification, the Respondent withdrew recognition based on a petition signed by a majority of unit employees between April 27 and May 8. The peti- tion stated that the employees no longer wished to be represented by the Union. Subsequent to the withdrawal of recognition, the Respondent unilaterally changed em- ployees’ working conditions by granting them a wage increase, modifying the eligibility requirements for bo- nuses, and altering discipline determinations under its attendance policy. The judge determined, under the test set forth in Mas- ter Slack Corp., 271 NLRB 78 (1984), that there was no causal relationship between the violations he found and the employee petition. Accordingly, he found that the Respondent did not violate Section 8(a)(5) by withdraw- ing recognition from the Union, or by thereafter unilater- ally implementing changes in working conditions. We disagree. As explained below, we find that the petition was tainted by the Respondent’s unlawful conduct and, therefore, that the withdrawal of recognition and subse- quent unilateral changes were also unlawful. On expiration of the certification year, and in the ab- sence of a collective-bargaining agreement, an incumbent union is presumed to enjoy majority support among unit employees it represents. An employer may rebut this presumption and withdraw from the bargaining relation- ship by introducing evidence, such as the petition relied on by the Respondent, that the union no longer enjoys majority support among the unit employees. Levitz Fur- niture Co. of the Pacific, 333 NLRB 717, 725 (2001). However, an employer may not rely on such evidence to withdraw recognition where it has committed unfair la- bor practices that have a tendency to cause the loss of majority union support. Bunting Bearings Corp., 349 NLRB 1070, 1071–1072 (2007); NLRB v. Williams En- terprises, 50 F.3d 1280, 1288 (4th Cir. 1995) (“company test of Pergament United Sales, 296 NLRB 333, 334 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Specifically, Roth’s statement was both “closely connected” to par. 13 of the complaint and fully litigated. See, e.g., Kenmor Electric Co., 355 NLRB 1038, 1043–1044 (2010); Park ‘N Fly, Inc., 349 NLRB 132, 133–134 (2007). 17 Children’s Center for Behavioral Development, 347 NLRB 35 (2006), on which the judge relied, does not support his finding that Roth’s speech was lawful. Although the respondent’s memorandum in that case blamed its “severe financial hardship” on various acts by the union, it did not, as did Roth’s speech, threaten any employees that they, in turn, would suffer adverse consequences. MESKER DOOR, INC. 597 may not avoid the duty to bargain by a loss of majority status caused by its own unfair labor practices”). In Master Slack Corp., 271 NLRB at 84, the Board set forth the following four-part test to determine whether there is a causal connection between an employer’s un- fair labor practices and the evidence indicating a loss of majority union support: (1) [t]he length of time between the unfair labor prac- tices and the withdrawal of recognition; (2) the nature of the illegal acts, including the possibility of their det- rimental or lasting effect on employees; (3) any possi- ble tendency to cause employee disaffection from the union; and (4) the effect of the unlawful conduct on employee morale, organizational activities, and mem- bership in the union. The unfair labor practices germane to this analysis in- clude Roth’s unlawful May 4 speech, Kaspers’ threats during contract negotiations in September and October 2005 that employees would not receive pay raises be- cause of recently filed charges, and the suspension of Rollie Powell in October 2005 and assessment of nega- tive attendance points against him in response to his fil- ing of charges and meeting with the Board agent investi- gating the charges. Applying Master Slack, we find a causal connection between these violations and the loss of majority union support on which the Respondent re- lied when withdrawing recognition. With respect to timing, the judge found, and we agree, that this causal factor was satisfied based on the with- drawal of recognition just 4 days after Roth’s unlawful May 4 speech in which Roth implicitly threatened to discharge “unhappy employees,” led employees to be- lieve that they would have received higher bonuses ab- sent the Union, and by the fact that the employee who solicited signatures for the petition “increased his efforts to obtain signatures after the speech.” The timing factor is further supported by the violations committed by Kaspers in September and October 2005. Contrary to the judge, we do not find the Kaspers violations too remote in time from the withdrawal of recognition. They cen- tered on the same theme as the conduct found unlawful in the May 4 speech—that adverse consequences may result from the filing of unfair labor practice charges. Thus, like Roth’s May 4 implication that charge filing was preventing employees from receiving higher bonus- es, Kaspers threatened during September and October 2005 bargaining sessions that employees would not re- ceive pay increases because of recently filed charges. And, consistent with Roth’s May 4 warning that charge- filing was incompatible with continued employment, the Respondent unlawfully suspended Powell in October 2005 for filing the charges that Kaspers complained about during the bargaining sessions, and because he met with the Board agent investigating those charges. In the- se circumstances, where Roth’s May 4 unlawful state- ments essentially reprised Kaspers’ violations during bargaining, we find that the 7-month passage of time did not dissipate the earlier unlawful conduct’s causal effects on the withdrawal of recognition. See, e.g., Beverly Health & Rehabilitation Services, 346 NLRB 1319, 1328–1329 (2006) (employee poll showing loss of ma- jority support was tainted by unlawful conduct that oc- curred 6–8 months earlier); AT Systems West, Inc., 341 NLRB 57, 60 (2004) (passage of 9 months would not reasonably dissipate effects of unlawful conduct). With respect to the second Master Slack factor, the na- ture of the Respondent’s illegal acts, we find that they would tend to have a lasting negative effect on employ- ees. Kaspers’ threat to eliminate employees’ pay raises in retaliation for their filing charges, and Roth’s subse- quent threat regarding the loss of significantly higher bonus payments, were highly coercive and constituted an assault on important Section 7 rights: the right to seek improved economic employment terms through collec- tive bargaining and the right to seek vindication of statu- tory rights by filing charges with the Board. Indeed, wage increases and higher bonuses involve “bread and butter” issues that lead employees to seek union repre- sentation, and threats to withhold them, “particularly where the Union is bargaining for its first contract, can have a lasting effect on employees.” Broadway Volkswagen, 342 NLRB 1244, 1247 (2004). We find that Kaspers’ and Roth’s threats against filing charges with the Board would have an equally detri- mental and lasting effect on employees. The Supreme Court has emphasized that “Congress has made it clear that it wishes all persons with information about [unfair labor] practices to be completely free from coercion against reporting them to the Board,” NLRB v. Scrivner, 405 U.S. at 121, quoting Nash v. Florida Industrial Commission, 389 U.S. at 238. Consistent with this con- cern, the Board has long “consider[ed] the unhampered access to its processes as a valuable right to be given the utmost protection.” Virginia-Carolina Freight Lines, Inc., 155 NLRB 447, 452 (1965). By threatening to re- taliate against employees for their filing of charges, the Respondent interfered with and “chill[ed] the Section 7 rights of all the employees,” Metro Networks, 336 NLRB 63, 67 (2001), with the likely long-term effect of deter- ring employees from filing future charges with the Board. The final two Master Slack factors focus on the effect of the unlawful conduct on protected employee activities, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 598 including any possibility of causing employee disaffec- tion from the Union. Bunting Bearing Corp., 349 NLRB at 1072; Penn Tank Lines, Inc., 336 NLRB 1066, 1068 (2001). As stated above, the violations here occurred in the midst of contract negotiations, and the May 4 viola- tions occurred in the presence of all the unit employees, including those on the Union’s negotiating team. Con- sidered in this context, the threats by Kaspers and Roth that filing charges during the bargaining process would result in lost wage increases and lower bonus amounts are the “type [of unlawful conduct] that reasonably tends to have a negative effect on union membership and to undermine the employees’ confidence in the effective- ness of their selected collective-bargaining representa- tive.” Penn Tank Lines, 336 NLRB at 1068; see also RTP Co., 334 NLRB 466, 468–469 (2001). Moreover, Roth’s May 4 speech appears to have directly affected employees’ support for the Union. The disaffection peti- tion had garnered 17 signatures in the week that it circu- lated before the May 4 speech, but an additional 18 em- ployees signed it during the 4 days after the speech, in- cluding about four employees who had refused to sign it before the speech. In sum, applying the Master Slack factors to the instant facts, we find a causal relationship between the Re- spondent’s substantial unfair labor practices and the peti- tion on which the Respondent relied to withdraw recog- nition from the Union. Under these circumstances, the Respondent could not lawfully challenge the Union’s majority status on the basis of the petition that resulted from its own unlawful conduct. Therefore, we conclude that by withdrawing recognition from the Union, the Re- spondent violated Section 8(a)(5) and (1) of the Act. In addition, because the Respondent was not entitled to withdraw recognition from the Union, it could not law- fully change its employees’ terms and conditions of em- ployment without providing the Union notice and bar- gaining to impasse or agreement. By disregarding this obligation and unilaterally implementing changes to the employees’ wage rates, bonus eligibility requirements, and attendance policy, the Respondent further violated Section 8(a)(5) and (1). RTP Co., 334 NLRB at 481. IV. AFFIRMATIVE BARGAINING ORDER For the reasons set forth in Caterair International, 322 NLRB 64 (1996), we find that an affirmative bargaining order is warranted in this case as a remedy for the Re- spondent’s unlawful withdrawal of recognition. We ad- here to the view that an affirmative bargaining order is “the traditional, appropriate remedy for an 8(a)(5) refusal to bargain with the lawful collective-bargaining repre- sentative of an appropriate unit of employees.” Id. at 68. In several cases however, the U.S. Court of Appeals for the District of Columbia Circuit has required that the Board justify, on the facts of each case, the imposition of such an order. See, e.g., Vincent Industrial Plastics v. NLRB, 209 F.3d 727 (D.C. Cir. 2000); Lee Lumber & Bldg. Material v. NLRB, 117 F.3d 1454, 1462 (D.C. Cir. 1997); and Exxel/Atmos v. NLRB, 28 F.3d 1243, 1248 (D.C. Cir. 1994). In Vincent, supra, the court summa- rized its requirement that an affirmative bargaining order “must be justified by a reasoned analysis that includes an explicit balancing of three considerations: (1) the em- ployees’ Section 7 rights; (2) whether other purposes of the Act override the rights of employees to choose their bargaining representatives; and (3) whether alternative remedies are adequate to remedy the violations of the Act.” Id. at 738. Although we respectfully disagree with the court’s requirement for the reasons set forth in Caterair, supra, we have examined the particular facts of this case, as the court requires, and find that a balancing of the three factors warrants an affirmative bargaining order. (A) An affirmative bargaining order in this case vindi- cates the Section 7 rights of the unit employees who were denied the benefits of collective bargaining by the Re- spondent’s withdrawal of recognition and refusal to con- tinue bargaining with the Union. At the same time, an affirmative bargaining order, with its attendant bar to raising a question concerning the Union’s continuing majority status for a reasonable time, does not unduly prejudice the Section 7 rights of employees who may oppose continued union representation, because the dura- tion of the order is no longer than is reasonably necessary to remedy the ill effects of the violations. To the extent such opposition may exist, moreover, it is at least partly due, as found above, to the Respondent’s unfair labor practices. An affirmative bargaining order is also warranted be- cause many of the Respondent’s unfair labor practices occurred throughout the initial certification year. By this conduct, the Respondent substantially undermined the Union’s opportunity effectively to bargain, without un- lawful interference, during the period when unions are generally at their greatest strength. The parties had reached agreement on many issues during collective bar- gaining and were not at impasse at the time the Respond- ent withdrew recognition. To the contrary, prior to the May 8 withdrawal of recognition, the parties had sched- uled another bargaining session for June 7. In these cir- cumstances, the Union was never given a truly fair op- portunity to reach an accord with the Respondent. It is only by restoring the status quo ante and requiring the Respondent to bargain with the Union for a reasonable MESKER DOOR, INC. 599 period of time that employees will be able to assess for themselves the Union’s effectiveness as a bargaining representative. (B) An affirmative bargaining order also serves the policies of the Act by fostering meaningful collective bargaining and industrial peace. It removes the Re- spondent’s incentive to delay bargaining in the hope of further discouraging support for the Union. It also en- sures that the Union will not be pressured by the Re- spondent’s withdrawal of recognition to achieve immedi- ate results at the bargaining table following the Board’s resolution of its unfair labor practice charges and issu- ance of a cease-and-desist order. (C) Finally, a cease-and-desist order, alone, would be inadequate to remedy the Respondent’s refusal to bargain with the Union, because it would permit a decertification petition to be filed before the Respondent has afforded the employees a reasonable time to regroup and bargain through their representative in an effort to reach an initial collective-bargaining agreement. Such a result would be particularly unfair in circumstances such as those here, where the Respondent’s unfair labor practices are likely to have a continuing effect, thereby tainting employee disaffection from the Union arising during that period or immediately thereafter. We find that these circumstances outweigh the temporary impact the affirmative bargain- ing order will have on the rights of employees who op- pose continued union representation. For all the foregoing reasons, we find that the affirma- tive bargaining order with its temporary decertification bar is necessary to fully remedy the allegations in this case. AMENDED CONCLUSIONS OF LAW 1. Substitute the following for the judge’s Conclusion of Law 5. “5. On May 4, 2006, Respondent violated Section 8(a)(1) of the Act by, through its plant manager, George Roth, interfering with, restraining, and coercing employ- ees in the exercise of their Section 7 right to file unfair labor practice charges, including by threatening them with discharge by telling them that they should find other employment if they are unhappy, telling them that they could have received higher bonus payments if the Union had not filed unfair labor practice charges, and threaten- ing them that negotiations with the Union would not con- tinue so long as the charges were pending.” 2. Substitute the following for the judge’s Conclusion of Law 8. “8. On June 9, 2005, Respondent violated Section 8(a)(1) by suspending Anthony Lyles, later reducing the suspension to a written warning, and docking him a day’s pay because he engaged in union discussions with a fel- low employee. 9. On May 8, 2006, Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Un- ion and thereafter unilaterally implementing various changes in the terms and conditions of employment of unit employees. 10. Respondent did not violate the Act in any other manner alleged in the complaint.” AMENDED REMEDY In addition to the remedies provided for in the judge’s decision, and the affirmative bargaining order provided for above, we shall order the Respondent to cease and desist from its unlawful conduct, and to rescind its un- lawful warning to Anthony Lyles, expunge any reference to his warning and the prior 1-day suspension for the same conduct in his personnel file, notify him in writing that this has been done, and make him whole, with inter- est, for any losses he suffered because of his unlawful suspension and warning. We shall further order the Respondent, if requested by the Union, to rescind its unilateral wage increases, and the changes made to its attendance system and bonus pay practice, that were implemented after its unlawful with- drawal of recognition from the Union. To the extent that these changes have improved the terms and conditions of employment of unit employees, the Order set forth below shall not be construed as requiring the Respondent to rescind such improvements, unless requested to do by the Union. ORDER The Respondent, Mesker Door, Inc., Huntsville, Ala- bama, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Coercing employees by instructing them not to dis- cuss with other employees their terms and conditions of employment, including matters related to vacation and leave, and threatening employees that they will jeopard- ize their employment and be subject to disciplinary ac- tion if they engage in such discussions or keep records of the vacation and leave taken by other employees. (b) Interfering with, restraining, and coercing employ- ees in the exercise of their Section 7 right to file unfair labor practice charges, including by threatening them with discharge by telling them that they should find other employment if they are unhappy, telling them that they could have received higher bonus payments if the Union had not filed unfair labor practice charges, and threaten- ing them that negotiations with the Union would not con- tinue so long as the charges were pending. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 600 (c) Suspending, warning, transferring, docking the pay of, or otherwise disciplining any employees because they engaged in union activities or because they filed unfair labor practice charges with the National Labor Relations Board, provided information to a Board investigator, or gave testimony under the Act. (d) Withdrawing recognition from the Union and re- fusing to bargain with it as the collective-bargaining rep- resentative of the employees employed in the bargaining unit described below in paragraph 2(e). (e) Unilaterally changing wages, benefits, and other terms and conditions of employment, without first notify- ing and bargaining with the Union. (f) In any like or related manner interfering with, re- straining, 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 choosing, or to engage in concerted activities for the purpose of collective bargain- ing or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Rescind the written warning and the prior 1-day suspension it imposed on employee Anthony Lyles on June 8, 2005; rescind the suspensions it imposed on Rol- lie Powell on October 13, 2005 and July 12, 2006; and rescind the July 12, 2006 transfer of Powell to a lower- paying job. (b) Within 14 days of the Board’s Order, remove from its files any references to the written warning and prior 1- day suspension issued to Lyles on June 8, 2005 and the related loss of pay, the suspension issued to Powell on October 13, 2005, and the suspension and transfer of Powell to a lower paying job on July 12, 2006, and with- in 3 days thereafter notify them in writing that this has been done and that the unlawful actions will not be used against them in any way. (c) Make Lyles and Powell whole with interest, for the loss of earnings and benefits that they may have suffered as a result of the unlawful suspension and written warn- ing issued to Lyles, and the suspensions of Powell and his transfer to a lower paying job. Backpay shall be computed in accordance with Ogle Protection Service, 183 NLRB 682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest at the rate prescribed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987), com- pounded daily as prescribed in Kentucky River Medical Center, 356 NLRB 6 (2010). (d) 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, social security records and reports, and all other records, in- cluding an electronic copy of such records if stored in electronic form, necessary to analyze the amount of backpay due under the terms of this order. (e) Recognize and upon request, meet and bargain with the Union as the exclusive bargaining representative of the employees in the following certified unit: All full-time and regular part-time production and maintenance employees employed by the Employer at its Huntsville, Alabama facility, including all welding employees, quality assurance employees, shipping and receiving employees and warehouse employees, but excluding all office clerical employees, technical em- ployees, professional employees, guards, and supervi- sors as defined by the Act. (f) On the Union’s request, rescind any or all of the unilaterally implemented changes made in the terms and conditions of employment of employees since May 8, 2006. (g) Within 14 days after service by the Region, post at its facilities in Huntsville, Alabama, copies of the at- tached notice marked “Appendix.”18 Copies of the no- tice, on forms provided by the Regional Director for Re- gion 10, after being signed by the Respondent’s author- ized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 con- secutive 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, post- ing on an internet site, and/or other electronic means, if the Respondent customarily communicates with its em- ployees by such means. Reasonable steps shall be taken by the Respondent to ensure that the notices are not al- tered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facili- ty involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the no- tice to all current employees and former employees em- ployed by the Respondent at any time since March 8, 2005. (h) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official, on a form provided by the Regional 18 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.” MESKER DOOR, INC. 601 Director, attesting to the steps that the Respondent has taken to comply. MEMBER HAYES, dissenting in part. Reversing the judge, my colleagues find that Manager Roth violated Section 8(a)(1) during a May 4, 2006 speech by threatening employees with economic loss and informing them that filing charges with the Board was futile. In so finding, my colleagues appear to acknowledge that Roth’s speech statements considered separately are too ambiguous to constitute violations of the Act. They conclude, however, that when considered in context of the rest of the speech, the violations are “readily apparent.” In my view, although my colleagues purport to view the speech “as a whole” to determine the lawfulness of Roth’s remarks, they do so only to cherry pick a few statements and read them together to support finding the violations. As I do not agree with my col- leagues’ reading of the speech or their conclusions that Roth’s statements are unlawful, I do not join them in finding the violations.1 As a result, I also disagree with the majority’s application of the Master Slack test to support finding two 8(a)(5) violations arising from the Respondent’s withdrawal of recognition. Consistent with the judge, I would find that insufficient evidence exists to conclude that the decertification petition relied on by the Respondent in withdrawing recognition was tainted by the Respondent’s conduct. Accordingly, I dissent. My colleagues find that Roth threatened employees with economic loss by informing them that the $200,000 it had spent on legal fees to respond to unfair labor prac- tice charges could have been used to improve life at the plant.2 In doing so, the majority homes in on Roth’s comments about employee bonuses and, together with his statement about the alternative use of the $200,000 spent on legal fees, concludes that Roth “reasonably 1 I join my colleagues in adopting the judge’s finding that the Re- spondent violated Sec. 8(a)(1) by disciplining employee Lyles and in adopting the judge’s dismissal of the allegation that the Respondent violated Sec. 8(a)(4) by discharging employee Herren. In addition, in the absence of exceptions, I join my colleagues in adopting the judge’s finding that Roth violated Sec. 8(a)(1) during the May 4 speech by informing employees that union activity was incompatible with contin- ued employment. 2 I note that the complaint alleges, and the General Counsel (GC) ar- gues in his exceptions, that the Respondent interfered with the employ- ees’ Sec. 7 rights in violation of Sec. 8(a)(1) by informing them that filing charges with the Board cost the Respondent money that otherwise would have benefitted the employees. In reversing the judge, my col- leagues characterize the violation found as an unlawful threat of eco- nomic loss. Thus, while my colleagues state that they find the violation alleged by the GC, they actually find a somewhat different violation. Regardless of the characterization, I would find that the Respondent did not act in an unlawful manner. conveyed the message that an additional $200,000 would have been allocated to fund bonuses of over $300, in- stead of $100, had the employees refrained from filing charges.” Contrary to the majority, I do not view Roth’s references to employee bonuses as being so neatly linked to his statement about the $200,000 spent on legal fees to warrant finding a violation. From my review of the speech as a whole, Roth’s ref- erences to employee bonuses were not made in connec- tion with one another, much less with his statement about the alternative use of the $200,000 spent on legal fees. In this regard, Roth began his speech by informing the employees that they had “hit the bonus numbers” and would each receive a $100 bonus. In the middle of his speech, he commented that the Respondent had spent $200,000 to respond to unfair labor practices, money that he believed could have gone into “improving life here at the plant.” And, at the end of his speech, he opined that if everyone worked together they could be “productive enough to share monthly bonus checks of over $300.” These statements were separated by the rest of Roth’s speech, which spans over five written pages in the record and covers a variety of other topics, such as the Re- spondent’s working relationship with the prior union, the status of collective bargaining with the current union, and company morale. Roth even shared a William Shakespeare quote with the employees and spent some time telling a lawyer joke. Given the disconnected nature of the statements relied on by the majority to find the violation, it is difficult for me to conclude that the employees would reasonably understand Roth’s statement about the $200,000 to be linked to employee bonuses. At no point did Roth state, or even indicate, that the employees had lost or would lose a bonus because the Respondent had spent that money on legal representation. Indeed, Roth referenced the money spent on attorneys fees in only one portion of his speech and did not elaborate at all on his statement that the money could have been used on “improving life here at the plant.”3 As such, I agree with the judge that Roth’s statement is best classified as a mere statement of opinion, protected by Section 8(c) of the Act, and not, as 3 This case is thus distinguishable from other cases where an em- ployer has been found to have violated Sec. 8(a)(1) by specifically linking money spent by the employer to defend against unfair labor practice charges with economic benefits or consequences to employees. See, for example, American Model & Pattern, 277 NLRB 176 (1985) (respondent violated Sec. 8(a)(1) by telling employees that ULP charg- es that cost the company money were “going to cost the employees as well”); and Wayne J. Griffin Electric, 335 NLRB 1362 (2001) (regard- ing money spent by the respondent to defend against ULP charges, manager violated Sec. 8(a)(1) by asking employees “wouldn’t you rather have that money in your profit sharing?”). DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 602 my colleagues find, a threat in violation of Section 8(a)(1). Regarding the futility allegation, I believe the majori- ty’s finding of a violation suffers from a similar deficien- cy. Again pointing to Roth’s comments about money the Respondent had spent on attorneys fees, the majority concludes the such a statement would send a message to the employees that filing charges was a futile act that cost the employees larger bonuses. But, as the judge found, nothing in Roth’s statements would convey to the employees that it would be futile for them to file charges. Roth did not tell the employees not to file charges, in- form them that doing so would have no effect, indicate the Respondent’s willingness to defy any remedies ulti- mately ordered by the Board related to the charges, or otherwise attempt to chill the employees’ Section 7 right to file charges. Instead, Roth truthfully informed the employees of the fact that the Respondent had spent a considerable amount of money responding to charges and expressed his opinion that the money could have been spent on other things. I thus agree with the judge that the link between Roth’s statements and the finding of a futility violation here is “tenuous.”4 Accordingly, I disagree with the majority’s decision to find the viola- tion.5 4 In finding the futility violation my colleagues rely on Great West- ern Produce, 299 NLRB 1004, 1023 (1990), where the judge made an incidental finding that money lost to lawyers is essentially costing employees money that would have gone to them, thereby teaching them a lesson that unionization is a futility. It is not clear that this finding was contested by exceptions. In any event, the case has not been cited for this proposition until today. I disagree both with my colleagues and the judge in Great Western that statements about money paid for legal expenses in Board proceedings invariably convey an implied threat of futility. In addition, the cases cited by the GC in his exceptions brief to sup- port finding a violation do not require such a result here. In those cas- es, the employers clearly communicated to employees the futility of filing charges with the Board. See S. E. Nichols, Inc., 284 NLRB 556 (1987) (after respondent’s president read the text of a pending Board complaint to employees, the president informed the employees that there was “no way in hell” that the discriminatees involved in the com- plaint “would ever come back and work in his store”); and 7UP Bot- tling Co., 261 NLRB 894 (1982) (manager informed employee that it had cost the respondent $1000 to visit the Board’s offices to discuss a charge filed by the employee and told the employee to “make all the allegations you want, nothing is going to change”). 5 My colleagues also find that Roth interfered with the employees’ exercise of their Sec. 7 rights, in violation of the Act, by telling the employees that their charge filing “has to stop.” As an initial matter, this violation is not alleged in the complaint, the judge did not address such an allegation in his decision, and the GC makes no argument in support of finding the violation in his exceptions brief. Thus, it is diffi- cult to conclude if the matter was fully and fairly litigated consistent with Pergament United Sales, 296 NLRB 333 (1989), enfd. 920 F.2d 130 (2d Cir. 1990). Even assuming the allegation is properly before the Board, I would not find the violation. In context, I do not read Roth’s As I would not find the above violations arising from Roth’s May 4 speech, I do not join my colleagues in their application of the Master Slack test to find that the decer- tification petition was tainted by the Respondent’s un- lawful conduct. In my view, most of the unfair labor practices relied on by the majority are too remote in time from the withdrawal of recognition to support a conclu- sion that they tainted the decertification petition. And although there is one unexcepted-to violation arising from the May 4 speech, I would not find this single vio- lation sufficient to taint the petition or to revive the older violations for taint purposes, as the majority appears to do. Instead, I agree with the judge that, under the Master Slack framework, there is insufficient evidence of a caus- al relationship between the unfair labor practices and employee disaffection to find that the petition was taint- ed. For the foregoing reasons, in agreement with the judge, I would dismiss the 8(a)(1) allegations arising from Roth’s speech and the 8(a)(5) allegations related to the withdrawal of recognition. And I dissent from my colleagues’ conclusions to the contrary. 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 interfere with, restrain, or coerce you in the exercise of these rights, guaranteed to you by Section 7 of the National Labor Relations Act. WE WILL NOT prohibit you from discussing with other employees your terms and conditions of employment, including those terms and conditions related to vacation time and leave under the Family Medical and Leave Act. WE WILL NOT tell you that you jeopardize your em- ployment or could be subject to disciplinary action for statement to convey an attempt by the Respondent to restrain employ- ees in the exercise of their statutory rights to file charges. MESKER DOOR, INC. 603 discussing terms and conditions of employment with other employees or for keeping track of the vacation and leave days that employees take. WE WILL NOT interfere with, restrain, or coerce you in exercising your right to file unfair labor practice charges with the National Labor Relations Board, including by threatening you with discharge by telling you that you should find other employment if you are unhappy or tell- ing you that you could have received higher bonus pay- ments if charges had not been filed, and WE WILL NOT tell you that if you file unfair labor practices with the Na- tional Labor Relations Board, negotiations with a labor organization representing you will not continue. WE WILL NOT warn, suspend, or transfer you, or dock your pay or otherwise discipline you because you en- gaged in union or other protected activity, or because you filed an unfair labor practice charge with the National Labor Relations Board, provided information to a Board investigator, or gave testimony under the National Labor Relations Act. WE WILL NOT withdraw recognition from the Union and refuse to bargain with it in the appropriate unit. WE WILL NOT change your wages, benefits, or other terms and conditions of employment, without first notify- ing and bargaining with the Union. WE WILL NOT, in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed to you by Section 7 of the Act. WE WILL rescind the written warning and prior 1-day suspension given to Anthony Lyles on June 8, 2005; the suspensions imposed on Rollie Powell on October 13, 2005 and July 12, 2006; and our transfer of Powell to a lower-paying job on July 12, 2006; and WE WILL expunge all references to those actions from our files and notify them in writing that this has been done. WE WILL make whole Anthony Lyles and Rollie Pow- ell for the loss of earnings and benefits they suffered as a result of the written warning and prior 1-day suspension given to Lyles and the suspensions imposed on Powell and transfer to lower paying job. WE WILL, on request, bargain with the Union as the ex- clusive bargaining representative of employees in the following bargaining unit: All full-time and regular part-time production and maintenance employees employed by us at our Hunts- ville, Alabama facility, including all welding employ- ees, quality assurance employees, shipping and receiv- ing employees and warehouse employees, but exclud- ing all office clerical employees, technical employees, professional employees, guards, and supervisors as de- fined by the Act. WE WILL, upon the Union’s request, rescind any or all of the unilaterally implemented changes that we made in the terms and conditions of employment of employees since May 8, 2006. MESKER DOOR, INC. John D. Doyle Jr., Esq., for the General Counsel. William F. Kaspers, Esq., for the Respondent. Mr. Morris Anderson, for the Charging Party. DECISION STATEMENT OF THE CASE KELTNER W. LOCKE, Administrative Law Judge. In this case, the General Counsel alleges that Respondent violated Section 8(a)(5) of the National Labor Relations Act (the Act) by withdrawing recognition from the Union after committing unremedied unfair labor practices. Although the record proves that Respondent committed some of the violations alleged, it fails to provide specific proof of a causal relationship between the unfair labor practices and the Union’s loss of majority sta- tus. Therefore, I conclude that Respondent lawfully withdrew recognition. Procedural History This case began on September 9, 2005, when the United Steelworkers of America, AFL–CIO–CLC (the Union) filed an unfair labor practice charge against Mesker Door, Inc. (the Respondent). The National Labor Relations Board (the Board) docketed this charge as Case 10–CA–35863. On October 24, 2005, Rollie Powell, an individual (Charging Party Powell), filed the initial charge in Case 10–CA–35938. Powell amended this charge on December 12, 2005. On November 30, 2005, the Regional Director for Region 10 of the Board issued a complaint and notice of hearing in Case 10–CA–35863. In doing so, the Regional Director acted for, and with authority delegated by, the Board’s General Counsel (the General Counsel or the Government). On December 15, 2005, the Regional Director issued an or- der consolidating Cases (10–CA–35863 and 10–CA–35938) and consolidated complaint. On December 29, 2005, the Board received Respondent’s timely answer. Also on December 29, 2005, the Regional Director issued a notice of hearing schedul- ing this matter for hearing on February 6, 2006. However, by Order dated January 26, 2006, the Regional Director postponed the hearing indefinitely. On May 16, 2006, the Union filed a charge against Respond- ent in Case 10–CA–36270. On May 26, 2006, Charging Party Powell filed a charge against Respondent in Case 10–CA–36284. On July 14, 2006, Cecil Herren, an individual (Charging Par- ty Herren), filed a charge against Respondent in Case 10–CA– 36363. Herren amended this charge on September 15, 2006. On July 19, 2006, Charging Party Powell filed a charge against Respondent in Case 10–CA–36372. On August 18, 2006, the Union filed a charge against Re- spondent in Case 10–CA–36422. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 604 On September 21, 2006, the Regional Director issued an Or- der consolidating cases and amended consolidated complaint in Cases 10–CA–35863, 10–CA–35938, 10–CA–36372, and 10– CA–36363. Respondent filed a timely answer. On November 22, 2006, the Acting Regional Director issued an order consolidating cases, second amended consolidated complaint and notice of hearing in Cases 10–CA–35863, 10– CA–35938, 10–CA–36284, 10–CA–36363, 10–CA–36372, 10– CA–36270, and 10–CA–36422. On December 6, 2006, the Regional Director issued an order consolidating cases and third amended consolidated complaint and notice of hearing in Cases 10–CA–35863, 10–CA–35938, 10–CA–36284, 10–CA–36363, 10–CA–36372, 10–CA–36270, and 10–CA–36422. For brevity, this pleading will be referred to as the “complaint.” Respondent filed a timely answer (the answer) dated December 14, 2006. On January 3, 2007, the hearing in this matter opened before me in Huntsville, Alabama. The parties presented evidence on that date on January 4 and 5 and on 8 through 12, 2007. On February 20, 2007, counsel presented oral argument. I. ADMITTED ALLEGATIONS Based on admissions in Respondent’s answer and on stipula- tions received during the hearing, I make the findings of fact discussed in this section of the decision. Respondent has admitted it received the various unfair labor practice charges as alleged in the complaint but, for lack of knowledge, has not admitted when the charging parties filed those charges with the Board. Based on the presumption of administrative regularity, and in the absence of any evidence to the contrary, I find that the charging parties filed the charges on the dates alleged. Further, I find that the General Counsel has proven the allegations set forth in complaint paragraphs 1(a) through (i). Based on Respondent’s admission, I find that at all material times Respondent, an Oklahoma corporation, with an office and facility located in Huntsville, Alabama, has been engaged in the manufacture of metal doors, frames, and accessories, as alleged in complaint paragraph 2. Based on Respondent’s admission, I find that during the 12- month period preceding issuance of the complaint, Respondent sold and shipped finished goods valued in excess of $50,000 directly to customers located outside the State of Alabama, as alleged in complaint paragraph 3. Although Respondent denied the legal conclusion alleged in complaint paragraph 4, its answer stated that “Respondent is willing to admit all of the facts upon which the legal conclusion could be based.” Moreover, as described above, Respondent has admitted the facts alleged in complaint paragraphs 2 and 3. Based on these facts, I conclude that at all material times, Re- spondent has been and is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. Moreover, based on Respondent’s answer and a stipulation during the hearing, I find that the following persons were, dur- ing the material time period, Respondent’s supervisors and agents within the meaning of Section 2(11) and (13) of the Act, respectively: Steven C. Frates, vice president; Michael Torres, both in his present capacity of marketing and customer relations manager and in his former capacity as plant manager; George Roth, plant manager; James Smith, accounting manager; Karen Temple, assistant to the comptroller; and Raymond Duncan, frame line supervisor. Although Respondent’s answer denied the legal conclusion that the Union was a labor organization, it further stated that “Respondent is willing to admit all of the facts necessary to draw the legal conclusion alleged in paragraph 5.” Moreover, Respondent’s answer admitted that pursuant to a secret-ballot election conducted March 10, 2005, under the supervision of the Regional Director of Region 10 of the Board, in Case 10– RC–15502, the Union was certified by the Board on March 22, 2005, as the exclusive collective-bargaining representative of the employees in a unit described in complaint paragraph 7. Accordingly, I conclude that the Union is a labor organization within the meaning of Section 2(5) of the Act. Respondent’s answer admitted “all of the facts upon which a conclusion could be drawn” that the unit described in complaint paragraph 7 was an appropriate unit for collective bargaining, within the meaning of Section 9(b), during the time period March 10, 2005 (the date of the Board-conducted election), to May 8, 2006 (the date Respondent withdrew recognition). Although Respondent has asserted that the Union had lost the support of a majority of unit employees on or before May 8, 2006, such a loss of majority support would not, in itself, make the unit inappropriate. Based on the Board’s certification in Case 10–RC–15502, as well as the admissions in Respondent’s answer, I conclude that at all material times, the following unit of Respondent’s em- ployees constituted an appropriate unit for collective bargaining within the meaning of Section 9(b) of the Act: All full-time and regular part-time production and mainte- nance employees employed by the Employer at its Huntsville, Alabama facility, including all welding employees, quality as- surance employees, shipping and receiving employees and warehouse employees, but excluding all office clerical em- ployees, technical employees, professional employees, guards, and supervisors as defined by the Act. Based upon the admissions in Respondent’s answer, I further find that during the time period March 22, 2005, to May 8, 2006, the Union was the exclusive representative, within the meaning of Section 9(a) of the Act, of the employees in the unit described above. Whether the Union continued to enjoy that status after May 8, 2006, as alleged in complaint paragraph 8, is a contested issue which will be examined later in this decision. Respondent has admitted, and I find, that it withdrew recog- nition from the Union on May 8, 2006, as alleged in complaint paragraph 20. Based upon Respondent’s admission, I find that on June 8, 2005, it suspended employee Anthony Lyles for 1 day, as al- leged in complaint paragraph 16(a). Also based upon Re- spondent’s admission, I find that on October 13, 2005, it im- posed on employee Rollie Powell a 1-day suspension, as al- leged in complaint paragraph 16(c). Additionally, based on Respondent’s answer, I find that on June 21, 2006, it discharged employee Cecil Herren, as alleged in complaint paragraph 16(d). MESKER DOOR, INC. 605 Further, based on Respondent’s answer I find that on July 12, 2006, it imposed a 2-day suspension on employee Rollie Powell, as alleged in complaint paragraph 16(e); that on July 14, 2006, it reassigned Rollie Powell to different duties, as alleged in complaint paragraph 16(f); resulting in a pay cut, as alleged in complaint paragraph 16(g). Respondent objected that the allegations in complaint para- graph 21 were irrelevant, but nonetheless admitted them. Based on Respondent’s admissions, I find that on about May 15, 2006, Respondent implemented certain changes to the wage rates of employees in the bargaining unit described above. Respondent similarly objected to the relevance of the allega- tions raised by complaint paragraph 22, but admitted them. Accordingly, I find that on or about June 5, 2006, the Respond- ent implemented certain changes in its points and attendance system applicable to employees in the bargaining unit, and that such changes pertained to the method and rate by which em- ployees “earned back” attendance points assessed to them, the number of allowable points, and the cap on the number of points that could be “earned back” under the system. Complaint paragraph 23 alleged that in about July 2006, Re- spondent implemented a change to the rules pursuant to which it calculated and determined whether to pay incentive bonuses to bargaining unit employees. Respondent’s answer objected to the relevance of this allegation, but subject to that objection, admitted that “around August 2006, the Respondent changed its incentive bonus system so that eligibility for a bonus now de- pends upon productivity and profitability.” Based on this ad- mission, I find that Respondent did change its rules regarding the payment of incentive bonuses to bargaining unit employees, but did so in August 2006 rather than in July 2006. Complaint paragraph 25 alleges that Respondent unilaterally engaged in the acts and conduct described in complaint para- graphs 21 through 23, inclusive, without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of Re- spondent’s employees with respect to such acts and conduct and the effects of such acts and conduct. Respondent objected to the relevance of this allegation on the basis that it had law- fully withdrawn recognition from the Union. Its answer further stated as follows: “Subject to the Respondent’s irrelevancy objection, Respondent admits that it unilaterally implemented any changes made to the wages, hours, and working conditions of its production, maintenance and warehouse employees since the Respondent withdrew recognition of the Union on May 8, 2006. However, the Respondent denies the allegations set forth in paragraph 25 . . . since prior notice to the Union and an op- portunity to negotiate and bargain as the exclusive representa- tive of the Respondent’s employees was afforded to the Union between March 22, 2005 and May 8, 2006, with respect to changes in wage rates, the attendance point system, and modifi- cation of the incentive bonus system to a bonus system based upon productivity and profitability.” Based on Respondent’s admission, I find that it unilaterally implemented the changes described in complaint paragraphs 21 through 23. Whether it breached a duty to bargain in good faith with the Union depends on whether it acted lawfully when it withdrew recognition from the Union. That issue will be dis- cussed later in this decision. II. DISPUTED ISSUES A. The 8(a)(1) Allegations 1. Complaint paragraphs 10 and 11 Complaint paragraph 10 alleges that on about March 9, 2005, Respondent, by Michael Torres, at Respondent’s facility, reit- erated an overly broad verbal admonition to employees not to discuss the Respondent’s handling of requests for leave under the Family and Medical Leave Act, the charging of vacation days in such circumstances, and other terms and conditions of employment. Complaint paragraph 26 alleges that this conduct violated Section 8(a)(1) of the Act. Respondent has denied both allegations. Complaint paragraph 11 alleges that on or about March 9, 2005, Respondent, by Michael Torres, at Respondent’s facility, threatened to discipline its employees if they tracked absences or engaged in discussions regarding the Family and Medical Leave Act, vacations, and other terms and conditions of em- ployment. Complaint paragraph 26 alleges that this conduct violated Section 8(a)(1) of the Act. Respondent has denied both allegations. The conduct described in complaint paragraphs 10 and 11 al- legedly took place the day before the Board conducted the se- cret ballot election which the Union won. Michael Torres, who was plant manager at the time, testified about a conversation he had on that date with employee Janice Medlock. Torres explained that previously, he had received complaints that Medlock was “keeping up with people’s absences in the plant.” On one occasion before March 9, 2005, Torres had spoken with Medlock about this matter telling her that other people’s absences really were not her concern and that she “ought to keep working.” After receiving another similar complaint, Torres spoke again with Medlock, this time on March 9, 2005. Although Medlock’s immediate supervisor, Billy Ray McFall, was pre- sent during this discussion, neither McFall nor Medlock testi- fied. Torres gave the only testimony concerning this matter, but the record also includes a note describing the conversation. (Procedurally, this exhibit came into the record in a some- what unusual manner. Although the General Counsel offered this document while presenting the Government’s case-in-chief, it is marked Respondent’s Exhibit 2. Both the General Counsel and Respondent agreed to its admission on this basis and I re- ceived it without objection. It already was in evidence when, after the General Counsel rested, Respondent moved to dismiss the allegations raised by complaint paragraphs 10 and 11 for want of proof. Based in part on this evidence, I denied the motion.) The date “3/9/05” appears at the top of Respondent’s Exhibit 2 and the name “Mike Torres” appears at the bottom. It states, in its entirety, as follows: Pat Schnitzmeir heard Janice talking to Charlotte Washington about keeping up with everyone’s days DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 606 missed. Pat was upset about it and brought it to Karen Temple’s attention. Karen told me about it. On the previous Friday (March 4th), I had talked to Janice about keeping up with everyone’s absences. She said she was doing it for herself. I told [her] that it wasn’t necessary and we treated everyone equally. I told her that going around talking to people about FMLA, vacations, etc. could jeopardize her job. She assured me that she wasn’t talking to anyone. I then talked to Janice Medlock with Billy Ray McFall present. I told her once again that I wasn’t sure why she was doing this. I also told her that last week she had said that this was something that she was keeping for her own personal use. I told her that this was the last time I wanted to hear from another employee that she was keeping rec- ords on them. If it happened again she would be disci- plined and receive up to a 1-day suspension. Although Torres testified that during this conversation with Medlock, there was no mention either of the Family Medical Leave Act (FMLA) or of employees’ vacations, the March 9, 2005 note, quoted above, specifically refers to both. Based on the note, I conclude that Torres did mention both. To support its argument that Torres’ comments to Medlock violated Section 8(a)(1) of the Act, the Government cites Tria- na Industries, 245 NLRB 1258 (1979); Scientific-Atlanta, Inc., 278 NLRB 622 (1986); and Automatic Screw Products Co., 306 NLRB 1072 (1992). In these cases, the Board found that the respondents had committed unfair labor practices by prohibit- ing their employees from discussing their wages. In Triana Industries, the Board stated: Section 7, which grants employees the unfettered right to en- gage in concerted activities for mutual aid and protection, en- compasses the right of employees to ascertain what wage rates are paid by their employer, as wages are a vital term and condition of employment. Respondent’s statement, by direct- ing employees not to engage in such activity (and thus imply- ing that the Employer does not look with favor upon employ- ees who engage in such activity) clearly tends to inhibit em- ployees in the exercise of their Section 7 rights. 245 NLRB at 1258. Just as wage rates constitute terms and conditions of employment, so do vacation days and FMLA leave. More precisely, the way an employer handles employee requests for such leave significantly affects working conditions. Logically, a rule restricting the discussion of these terms of employment interferes with the exercise of Section 7 rights just as much as a rule forbidding employees from talking about wages. In determining whether a statement unlawfully interferes with the exercise of Section 7 rights, the Board does not con- sider the intent of the speaker or the reaction of the particular listener. Rather, the Board “applies the objective standard of whether the remark tends to interfere with the free exercise of employee rights.” Scripps Memorial Hospital Encinitas, 347 NLRB 52 (2006), citing Miller Electric Pump & Plumbing, 334 NLRB 824 (2001). Therefore, although I find that Torres did not intend to interfere with the exercise of Section 7 rights, that innocence does not immunize his remarks. Torres had received complaints from employees made un- comfortable by Medlock’s unexplained watchfulness. Follow- ing up on those complaints, Torres necessarily would focus on Medlock’s reported practice of placing other workers under a kind of “surveillance,” rather than on any communication Med- lock might have with other employees concerning the way Re- spondent administered its leave policy. Moreover, the record does not indicate that Medlock did or said anything to indicate she was keeping track of employees’ leave so that she could discuss this working condition with them. To the contrary, Medlock told Torres that she wasn’t talking to anyone about this matter. Thus, Torres had little reason to view the warning he gave Medlock as a restraint on employee discussions about working conditions. Therefore, if establishing an 8(a)(1) violation required evi- dence of unlawful intent, I would recommend dismissal of the- se allegations. However, Torres’ statements to Medlock must be judged not on their intended purpose but rather on the effect these statements likely would have on the exercise of Section 7 rights. By analogy, a rock slide is innocent of intent, yet it impedes traffic just as much as a roadblock. However, in one limited respect, Torres’ intent does have some relevance. In determining whether a particular statement interferes with the exercise of Section 7 rights, the Board con- siders the statement in its total context. When a speaker’s un- lawful intent reasonably would be obvious to the listener, the presence of such animus certainly affects the message commu- nicated by the words. Ambiguous words may take on a chilling meaning when spoken by someone openly hostile to protected activities. Here, the converse may be argued, that Torres’ mo- tive was so obvious that a listener reasonably would not under- stand his words to prohibit discussion protected by Section 7. Whatever force such an argument might have in other cir- cumstances, it must be rejected here. Torres told Medlock “that going around talking to people about FMLA, vacations, etc., could jeopardize her job.” That statement is not ambiguous. On its face, Torres’ warning forbids an employee from discuss- ing certain terms and conditions of employment. An employee reasonably would conclude that any discussion of these work- ing conditions could result in discipline. In these circumstances, I conclude that Torres’ remarks did interfere with, restrain, and coerce employees in the exercise of Section 7 rights. Therefore, I recommend that the Board find that Respondent violated Section 8(a)(1) of the Act by the con- duct alleged in complaint paragraphs 10 and 11. It isn’t entirely clear whether Respondent is asserting that the 6-month “statute of limitations” in Section 10(b) of the Act bars these allegations. Respondent does note that Manager Torres first cautioned Medlock before March 9, and that this earlier discussion took place outside the 10(b) period. However, the complaint does not allege that Torres committed an unfair labor practice during this earlier conversation. In oral argument, Respondent stated that the conduct alleged in complaint paragraphs 10 and 11 took place “six months to the day before the September 9 charge was filed.” Thus, Re- spondent appears to recognize that these allegations are, in fact, timely and it appears that Respondent is not raising a 10(b) defense with respect to them. However, even if Respondent MESKER DOOR, INC. 607 does assert such a defense, I conclude that Section 10(b) does not bar the litigation of the allegations in complaint paragraphs 10 and 11. The Union filed the first charge in this proceeding on Sep- tember 9, 2005. This charge, docketed as Case 10–CA–35863, raised a number of allegations, including the following: On an occasion in about April 2005, the Employer, by Mike Torres, at the Employer’s facility, directed employees not to discuss with one another the Employer’s practices with re- spect to its handling of absences by unit employees, a term and condition of employment. Notwithstanding that the charge alleges that the incident oc- curred “in about April 2005,” this language clearly describes Torres’ warning to Medlock on March 9, 2005. Alleging an incorrect date does not change the determinative fact, that the conduct took place within 6 months of the filing of the charge. Since the conduct itself fell within the 10(b) period, I conclude that the allegations may be litigated. Respondent also argues that on March 16, 2005, it reached an agreement with the Union “not to pursue any allegations predating the [March 10, 2005] election except [the allegations] involving the termination of Nathan Vereen.” However, Re- spondent does not assert that the General Counsel entered into such an agreement. The record does not indicate that the Charging Party ever withdrew, or requested to withdraw, the charge in Case 10– CA–35863. The record also does not establish that the Charg- ing Party ever amended this charge to delete the language quot- ed above. Accordingly, it remained within the General Coun- sel’s discretion to proceed on this allegation. In these circum- stances, I reject Respondent’s argument and adhere to my rec- ommendation that the Board find that Respondent violated Section 8(a)(1) of the Act by the conduct alleged in complaint paragraphs 10 and 11. 2. Complaint paragraph 12 Complaint paragraph 12 alleges that on occasions in mid- September and mid-October 2005, the Respondent, by its agent, at a Hampton Inn hotel in Huntsville, Alabama, threatened employees that the Respondent would withhold pay raises from employees because the Union and employees had pursued charges and given testimony pursuant to the Act. Complaint paragraph 26 alleges that this conduct violated Section 8(a)(1) of the Act. Respondent has denied these allegations. The individual identified in the complaint as “Respondent’s agent” is its attorney, William Kaspers. The record clearly establishes his role as Respondent’s spokesperson during nego- tiations with the Union and the statements he made during the course of the bargaining are attributable to Respondent. Credi- ble evidence clearly shows that Kaspers possessed both actual and apparent authority to speak on behalf of Respondent, and I conclude that he was Respondent’s agent within the meaning of Section 2(13) of the Act. The Union’s bargaining committee consisted of Union Rep- resentative Morris Anderson and three employees, Rollie Pow- ell, Anthony Johnson, and Regan Long. As noted above, Wil- liam Kaspers served as Respondent’s chief negotiator. Michael Torres, who held the positions of plant manager and, subse- quently, customer relations manager, also participated. Based upon my observations of the witnesses, I conclude that Regan Long provided the most accurate testimony. Long’s demeanor, especially on cross-examination, persuades me that his testimony is more reliable than that of other witnesses. To the extent that the testimony of other witnesses conflicts with that of Long, I do not credit it. Rollie Powell’s demeanor also impressed me as that of a sin- cere and honest witness. At times during his testimony, Powell appeared to become indignant, but I discerned no artifice or lack of sincerity. Additionally, based upon my observations, I conclude that the third employee member of the Union’s nego- tiating committee, Anthony Johnson, also brought to the wit- ness stand an earnest intent to testify accurately. At times, Johnson’s memory of events lacked detail, but the want of spe- cifics did not lead to confabulation. In sum, I conclude that the testimony of Long, Powell, and Johnson concerning the negoti- ating sessions should be credited, and I rely on it. The Charging Parties in the present cases filed a number of unfair labor practice charges against the Respondent. From the outset of collective bargaining, Respondent protested that the parties should address through the negotiating process the is- sues raised by the charges, rather than taking those issues to the Board. Manager Torres testified that at “[p]retty much every bar- gaining session, starting with the first session, there were charges pending with the NLRB and we asked that we try to resolve these issues at the table rather than going to the NLRB.” Torres also testified that he remembered “comments being made” during the September and October 2005 bargain- ing sessions “that basically the company didn’t have unlimited resources, the lawyer didn’t work for free.” Torres’ testimony considerably downplays how greatly the unfair labor practice charges vexed Respondent. Respondent’s attorney, Kaspers, returned to this subject repeatedly during negotiations, even though the filing of unfair labor practice charges is not a mandatory subject of bargaining. Torres’ vague recollection about “comments being made” that “the company didn’t have unlimited resources” does not capture either Kaspers’ words or their gravamen, but the three employ- ee members of the Union’s bargaining committee provide a consistent picture. Long testified that during a bargaining session in mid- September 2005, Kaspers said, “I hope you all know for keep- ing on this NLRB on these charges all the time and us having the cost of litigating, you just done away with any raises you was going to get.” My observations lead me to conclude that Long was a reliable witness and the fact that he may have para- phrased some of Kaspers’ words does not diminish his credibil- ity. Based on Long’s testimony, which I credit, I find that Kaspers referred to the unfair labor practice charges and then told the employees that they had done away with any raises they were going to get. Another member of the Union’s negotiating committee, Rol- lie Powell, testified that during the mid-September 2005 bar- gaining session, Kaspers said that “you people” would not get a 35 cents per hour pay raise “because of these charges. The DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 608 Company will have to pay money to defend against these charges. It is a distraction. And you have to drop the charges so we can move these negotiations along.” Based on Powell’s credited testimony, I find that Kaspers did tell the employees on the Union’s negotiating committee that they would not receive the raise because of the unfair labor practice charges. Further, I find that Kaspers told them that they would have to drop the charges to move the negotiations along. The com- plaint does not allege this statement, linking progress in negoti- ations to dropping the unfair labor practice charges, to be a separate violation. However, it constitutes part of the overall context and thus should be considered in determining what Kaspers’ words about the unfair labor practice charges reason- ably would convey to employees. Kaspers’ words about “moving the negotiations along” ac- quire additional significance in light of the parties’ bargaining framework. The parties had deferred the negotiation of eco- nomic terms until after reaching agreement on noneconomic items. Thus, a statement that the Charging Parties would have to drop their unfair labor practice charges to “move these nego- tiations along” implies that the Union might not even reach the point of discussing a pay raise so long as the unfair labor prac- tice charges remained pending. The third employee member of the Union’s negotiating committee, Anthony Johnson, testified that, during a bargaining session in October 2005, Kaspers said words to the effect of “thank you for paying me,” explaining that Respondent paid him because of the charges being filed. According to Johnson, Kaspers added, “[Y]ou’re talking yourself out of raises, you know.” Union Representative Morris Anderson testified that Kaspers discussed the filing of charges, but Anderson could not recall clearly what Kaspers said. “I believe,” Anderson testified, “[H]e was indicating that he felt those charges were frivolous and asked us to attempt to resolve whatever issues occur, at the bargaining table.” When the General Counsel directed Ander- son’s attention to the September 2005 bargaining session, An- derson testified that he believed Kaspers had raised the subject of unfair labor practice charges at this meeting: “I think he had mentioned to the committee and myself again that our guys was filing charges that he believed were frivolous and I believe he also mentioned that these—I think he indicated these charges were expensive and would have an effect on economics.” Anderson’s testimony, although vague, does not contradict that of Long, Powell, and Johnson. To summarize, based on the credited testimony of these three employee witnesses, I find that during the September 2005 bargaining session, Kaspers said that because of the unfair labor practice charges, the em- ployees had “done away with any raises they were going to get.” At this September 2005 meeting, Kaspers also told the union negotiators that because of the charges, employees would not receive a 35-cent raise, and that they would have to drop the charges to “move things along.” Further, I find that at a negotiating session in October 2005, Kaspers referred to the unfair labor practice charges and told the employees that they were talking themselves out of raises. Respondent argues that when Kaspers indicated that the un- fair labor practice charges would have an adverse effect on raises, he was not making a threat, but instead was making an obvious commonsense observation. Respondent reasons that because of the unfair labor practice charges, it had to spend money on legal counsel, and that this expenditure necessarily diminished the funds available to raise employees’ pay. However, even assuming that Respondent articulated this reasoning as clearly at the bargaining table as it did in this pro- ceeding, I do not judge the words for the soundness of their logic as a syllogism. Rather, applying an objective standard, and considering the entire context, I must determine what mes- sage those words would communicate to employees. Then, I must weigh what effect that message reasonably would have on employees’ willingness to exercise their statutory rights, in- cluding, notably, the right to file unfair labor practice charges with the Board. Board precedent distinguishes between a lawful prediction and an unlawful threat. Like a prediction, a threat makes a kind of “prophecy” about the consequences of a particular action. However, the threat carries the additional connotation that the speaker, through some action, is going to bring about the pre- dicted result. Under NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), a lawful prediction must be based on “objective fact to convey an employer’s belief as to demonstrably probable consequences beyond his control.” Kaspers’ words, communicating that the existence of the unfair labor practice charges prevented the employees from receiving a pay raise, do not concern a demon- strably probable consequence beyond the Respondent’s control. Obviously, Respondent does not have an unlimited amount of money. No one does. But recognition that Respondent’s bank account can be exhausted says nothing about the amount of money actually in that account. There is no reason to believe that the bank account either is, or is not, large enough to pay both the attorney’s fee and raise the employees’ pay. Respondent did not tell the employees, for example, “[W]e have ‘x’ dollars to spend and our attorney is billing us more than that for his services in connection with the unfair labor practice charges.” Here, I need not speculate regarding whether such a statement would have satisfied the requirement that the prediction be based on objective facts. Respondent did not make such a statement. Further, the record provides no factual basis for reaching any conclusion about Respondent’s ability to pay its lawyer and also increase employees’ wages. Similarly, the record does not demonstrate that filing the un- fair labor practice charges depleted all money available for a pay raise through some mechanism or foreseeable chain of events outside of the Respondent’s control. To reach such a conclusion would require resort to an unjustified presumption. Therefore, I conclude that Kaspers’ words reasonably would communicate to employees the message that Respondent, of its own volition, would deny a pay raise—indeed, that Respondent would deny a contemplated pay raise—because of employees’ protected activities. In sum, I conclude that Kaspers’ words at the September and October 2005 bargaining sessions, linking the existence of the unfair labor practice charges to the absence of a wage increase, constitute a threat of adverse consequences for engaging in MESKER DOOR, INC. 609 protected activity. See Chinese Daily News, 346 NLRB 906 (2006). Accordingly, I further conclude that Respondent violated Section 8(a)(1) of the Act by engaging in the conduct alleged in complaint paragraph 12, and recommend that the Board so find. 3. Complaint paragraphs 13 and 14 Complaint paragraphs 13, 14, and 15 concern a speech which Plant Manager George Roth made to employees at a meeting on May 4, 2006. Complaint paragraph 26 alleges that the state- ments described in those three complaint paragraphs violated Section 8(a)(1) of the Act. Respondent denies all of these alle- gations. More specifically, complaint paragraph 13 alleges that on or about May 4, 2006, the Respondent, by George Roth, at Re- spondent’s facility, interfered with employees’ Section 7 rights by telling them that filing charges with the Board was futile. Complaint paragraph 14 alleges that on this date, Respondent, by Roth, “interfered with employees’ Section 7 rights by telling employees that the filing of charges under the National Labor Relations Act and employees’ protected activities was costing the Respondent money that would had [sic] otherwise benefited the employees.” Complaint paragraph 15 alleges that on this date, Respond- ent, by Roth, “interfered with employees’ Section 7 rights by inviting and requesting employees to quit their employment because they had engaged in Union and protected activities.” Although this allegation also concerns Roth’s May 4, 2006 speech, it will be discussed under a separate subheading below. The record clearly establishes the content of Plant Manager Roth’s May 4, 2006 speech to bargaining unit employees. The exhibits include the text of this speech, which consists of 5- typed pages with some modifications in handwriting. Based on the credited evidence, I find that Roth delivered this speech substantially as it appears in written form, and that any devia- tions from the text were inconsequential. The first part of Roth’s speech concerned the collective bar- gaining between Respondent and the Union. Roth told the employees that 20 negotiating sessions should have been suffi- cient to reach a contract and he blamed some employees on the Union’s bargaining committee. According to Roth, who did not identify the employees by name, they had allowed “person- al self-interest [to] predominate over what’s in the best interests of all employees and the Company.” Roth further criticized two of the Union’s negotiators for re- signing from the bargaining committee right “when it’s time to negotiate the terms that really matter––wages, profit-sharing, and other cost issues. . . .” Although Roth did not name the two negotiators who resigned, only three employees served on the Union’s bargaining committee and, I infer, most of the work- force knew that the resigning committee members were Regan Long and Rollie Powell. The complaint does not allege that Roth’s criticisms of the negotiations and the negotiators violated the Act. Therefore, I do not consider whether Roth’s statements, described above, interfered with, restrained, or coerced employees in the exercise of their statutory rights. However, Roth’s speech then shifted focus to the unfair labor practice charges. It stated, in pertinent part: [W]hen the contract negotiations finally got to [the] point where it’s time to negotiate the terms that really mat- ter . . . two of the three employees that we gave 20 days off to negotiate a contract suddenly decide to resign from the Union’s negotiating committee apparently so that they can dedicate their time and efforts to filing and pursuing allegations with the National Labor Relations Board. That’s nuts. Since interest in the Steelworkers [Union] surfaced a little more than a year ago, they have either filed or supported the filing of dozens of allegations with the National Labor Relations Board. The NLRB has yet to find the Company guilty of any of the alleged violations. Admittedly, several of the charges were settled last Au- gust—not because the Company had done anything wrong, but instead because it would have cost more to proceed with the defense than it cost to pay 2-time con- victed felony child abuser a few thousand bucks to end those proceedings. The only person who wins when charges are filed with the NLRB is the Company’s lawyer. Personally, I think William Shakespeare was right when he suggested killing all the lawyers. Some of you have probably heard the joke, “What do you call 500 lawyers at the bottom of the ocean? . . . A good start.” With all of the charges and allegations that they and others have filed with the NLRB, the Company has had to have a lawyer present at all 20 of the bargaining sessions to insure that we’re not inadvertently doing something that they might turn into yet another NLRB charge. Since the Steelworkers came in a year ago, the Com- pany has paid the Company’s lawyer over $200,000 to protect the Company’s interests against the charges that they and others have made or threatened to make. $200,000 that otherwise could have gone into improving life here in the plant. That’s nuts. The only thing that filing charges with the NLRB does, other than make the Company’s lawyer rich, is continue to foster an adversarial us—versus—them attitude. Personal- ly, I don’t really care whether we operate under a union contract or not. We’ve operated under a union contract and made money sometimes and not made money other times, and we’ve operated without a union and made mon- ey sometimes and not made money other times. What doesn’t work, however, and never will, particu- larly in competitive times when we’re competing against doors made in China, is the adversarial us—versus—them environment that they are attempting to foster with all of the charges they file with the NLRB. That old saying, “a house divided cannot stand” certainly applies to an indus- trial setting. I’m not saying that the union or the employ- ees who supported it are solely to blame for the adversarial us—versus—them environment. However, it all has to stop, because it’s negative, counterproductive, and very detrimental to the long term viability of this operation and this Company. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 610 I have been told that early on in the negotiations, one man said that he didn’t care whether the Company went out of business, and another has very recently said that if he didn’t get his way, he’d put the Company out of busi- ness. Well, too many of us have worked too long and too hard for anyone to seriously consider putting this Compa- ny out of business or even talking about it. If that’s where they are today, then they should find another job else- where and stop infecting the rest of us with all of their negativity. I expect that as soon as I finish talking, they will say that I’m all wet and that they know what’s best. My idea of what’s best is when we can leave the us—versus—them attitude on the sideline and be productive enough that we can share monthly bonus checks of over $300. We’re all in this to make a living and feed our families. We don’t show up for work in the morning to put this Company out of business. And, anyone who’s so unhappy here that you think you need to put this Company out of business needs to move on, find another job, and leave the rest of us the hell alone. I will give you a good letter of reference. It is not in the best interest of you or the company to stay in a job you don’t like where you are not happy. Life is too short. In addition to the text quoted above, Roth’s speech did make one additional, passing reference to unfair labor practice charg- es. When Roth began speaking, he apologized for reading the speech, explaining that “it seems like every time we turn around or say anything, somebody files another charge about it with the NLRB.” However, the complaint does not allege that statement to be violative and I make no finding concerning it. Rather, I must determine whether any part of Roth’s speech told employees that filing unfair labor practice charges was futile and, if so, whether such a statement violated Section 8(a)(1). Nowhere in the speech did Roth state explicitly that filing an unfair labor practice charge was futile and, indeed, he did not use the word “futile” at all. Roth did tell the employees that since the arrival of the Un- ion, “they have either filed or supported the filing of dozens of allegations with the National Labor Relations Board. The NLRB has yet to find the Company guilty of any of the alleged violations.” Roth did not state specifically who “they” were. Based on the entire record, it appears that Roth was referring to Regan Long and Rollie Powell, two employees serving on the Union’s negotiating team. Roth’s statement—that “they” filed or supported the filing of “allegations” with the Board—does not communicate a mes- sage that filing an unfair labor practice charge is futile. Indeed, what Roth said next conveys the opposite message, that filing a charge could result in a benefit to the charging party even if the charge was meritless. Thus, Roth informed the employees that Respondent had settled “several of the charges” but “not be- cause the Company had done anything wrong.” Rather, Re- spondent determined it would cost more to defend against the charges than to pay a settlement. Applying an objective standard, I conclude that this message reasonably would not discourage an employee from filing a charge. If Roth’s words had any effect on the willingness of an employee to file a charge, they reasonably would make an em- ployee more likely to do so. A typical employee, without much knowledge of the Act, might hesitate before filing a charge, suspecting that it would be a waste of his time, or, in other words, futile. However, Roth’s words, indicating Respondent’s willingness to settle even a meritless charge because of its “nui- sance value,” reasonably would increase the employee’s expec- tation of deriving a benefit. It is true that Roth said that the “only person who wins when charges are filed with the NLRB is the Company’s lawyer.” Standing alone, those words do imply that the person filing the charge does not “win,” or benefit from that action. Arguably, an employee could infer that, since a person filing a charge could not “win,” filing a charge was “futile.” Such reasoning requires drawing an inference from an impli- cation and is thus quite tenuous. Moreover, Section 8(c) pro- tects an employer’s right to express an opinion, including the opinion that only the lawyer benefits when a charge is filed. This protection doesn’t depend on whether the particular opin- ion is correct. Rather, it extends to all expressions of opinion which do not carry a threat of reprisal or force or a promise of benefit. No such threat or promise taints Roth’s statement here. Complaint paragraph 13 alleges that parts of Roth’s speech unlawfully communicated that filing charges with the Board was futile. For the reasons discussed above, applying an objec- tive standard, I conclude that Roth’s words reasonably would not convey that message. Therefore, I recommend that the Board dismiss the allegations associated with complaint para- graph 13. Complaint paragraph 14 alleges, in effect, that Roth inter- fered with the exercise of Section 7 rights by telling employees that filing charges and engaging in other protected activity was costing Respondent money which otherwise would have been used to benefit the employees. Roth’s speech, quoted above, includes the statement that Respondent had paid legal fees ex- ceeding $200,000 to defend against the unfair labor practice charges and also had paid an undisclosed amount to settle an unfair labor practice charge. An employer’s simple announcement of how much it had paid a lawyer would not, by itself, constitute a threat or promise which interfered with the exercise of Section 7 rights. Howev- er, complaint paragraph 14 further alleges that Roth said that the unfair labor practice charges were costing money which otherwise would have benefited the employees. The record does not establish that Roth specifically said that the money Respondent paid in legal feels otherwise would have benefited employees. Based on the credited evidence, I find that Roth actually told the employees that Respondent had paid a lawyer “$200,000 that otherwise could have gone into im- proving life here in the plant.” However, employees reasonably would understand Roth to mean that Respondent would have used the $200,000 to improve their working conditions in some unspecified way. In analyzing whether such comments amount to an unlawful threat, I apply the same principles discussed above in connec- tion with complaint paragraph 12. However, the statements which Roth made to employees on May 4, 2006, differ signifi- MESKER DOOR, INC. 611 cantly from the remarks of Respondent’s attorney at the Sep- tember and October 2005 bargaining sessions. Attorney Kaspers’ remarks at the bargaining table clearly conveyed that because of the unfair labor practice charges the employees would not receive a raise. Additionally, he commu- nicated that negotiations would not progress unless the charges were withdrawn. From Kaspers’ statements and the total con- text, employees reasonably would conclude that the detriment he predicted would not happen automatically as a natural con- sequence of charge filing. Instead, the potential harm would flow from Respondent’s decision not to allow negotiations to progress and not to agree to a wage increase. When Roth told employees that Respondent had paid a law- yer $200,000 to defend against the charges, he did not say that management had made a conscious decision to take money earmarked to improve working conditions and spend it instead on legal representation. It may be argued that paying legal fees is not a “demonstrably probable consequence” of being the recipient of an unfair labor practice charge and, likewise, such payments did not turn on events beyond the Respondent’s con- trol. Arguably, the decision to retain counsel falls within a charged party’s control. Certainly, one can say that a person accused of unlawful conduct can decide not to consult an attor- ney. One also can say that a person with fever and abdominal pain can decide not to call a doctor. In practice, the complexity of federal employment law has made the retention of counsel a normal, legitimate, and expected business practice. Essentially, Roth lamented that the unfair labor practice charges had resulted in Respondent paying a lawyer money which could better have been spent for other things. Express- ing such an opinion did not communicate to employees either a threat of reprisal or a promise of benefits. Freedom of speech is the rule rather than the exception. The government bears the burden of proving that a particular state- ment carries a threat of reprisal or force, or a promise of bene- fit, sufficient to remove it from the protection of Section 8(c). Here, the credited evidence does not establish the existence of such a threat or promise. In Children’s Center for Behavioral Development, 347 NLRB 35 (2006), the Board considered a respondent’s memo to its employees with content not unlike Roth’s speech. The memo accused the employees’ union of “doing everything in its power” to harm the respondent, including interfering with the respondent’s relationship with a funding source, United Way. The Board, reversing the administrative law judge, found that this memo was “a lawful expression of the Respondent’s opin- ion about the Union and does not violate the Act.” 347 NLRB at 35. Similarly, I conclude that Roth’s speech constituted a lawful expression of opinion. As the Board held in Children’s Center for Behavioral De- velopment, supra, “an employer may criticize, disparage or denigrate a union without running afoul of Section 8(a)(1) pro- vided that its expression of opinion does not threaten employ- ees or otherwise interfere with the Section 7 rights of employ- ees.” Roth’s speech falls within the bounds of lawful criticism. (For accuracy, it should be noted that Roth did not direct much criticism at the Union. Instead, his speech excoriated two of the three employees on the Union’s bargaining committee.) Accordingly, I conclude that Respondent did not violate the Act in the manner alleged in complaint paragraphs 13 and 14. Therefore, I recommend that the Board dismiss these allega- tions. My conclusion that Respondent did not violate the Act makes it unnecessary to consider Respondent’s affirmative defense that Section 10(b) of the Act bars certain of the allega- tions. 4. Complaint paragraph 15 Complaint paragraph 15 raises one other allegation related to Roth’s May 4, 2006 speech. This paragraph alleges that Re- spondent interfered with employees’ Section 7 rights by “invit- ing and requesting employees to quit their employment because they had engaged in Union and protected activities.” The 6-month time limitation in Section 10(b) of the Act clearly does not bar this allegation. The charge in Case 10– CA–36284, filed May 26, 2006, specifically described the con- duct which forms the basis for complaint paragraph 15. During his May 4, 2006 speech, Roth quoted one employee as saying that he didn’t care whether Respondent went out of business. Roth added that another employee had “very recently said that if he didn’t get his way, he’d put the Company out of business.” Roth then said: [A]nyone who’s so unhappy here that you think you need to put this Company out of business needs to move on, find an- other job, and leave the rest of us the hell alone. I will give you a good letter of reference. It is not in the best interest of you or the company to stay in a job you don’t like where you are not happy. Life is too short. The General Counsel argues that this statement violated Sec- tion 8(a)(1) of the Act. For the following reasons, I agree. In Jupiter Medical Center Pavilion, 346 NLRB 650 (2006), the respondent conducted a number of employee meetings in response to a union organizing campaign. At one such meet- ing, an employee criticized the way management treated its workers. A supervisor replied, “Maybe this isn’t the place for you . . . there are a lot of jobs out there.” Reversing the admin- istrative law judge, the Board held that the statement, suggest- ing that the employee seek work elsewhere, violated Section 8(a)(1) of the Act. The Board has long found that comparable statements made either to union advocates or in the context of discussions about the union violate Section 8(a)(1) because they imply that sup- port for the union is incompatible with continued employment. Rolligon Corp., 254 NLRB 22 (1981). Suggestions that em- ployees who are dissatisfied with working conditions should leave rather than engage in union activity in the hope of rectify- ing matters coercively imply that employees who engage in such activity risk being discharged. As discussed above, Section 8(c) recognizes and protects an employer’s right to express an opinion, so long as the expres- sion does not convey a threat or a promise. Thus, an employer does not violate the Act merely by voicing the sentiment that an unhappy employee should look for work elsewhere. Consid- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 612 ered in a “vacuum”—free of context—such a statement does not implicate an employee’s protected activities. However, context can shape the same words into a less be- nign message. As the Board observed in Jupiter Medical Cen- ter Pavillion, supra, when an employer makes such a statement “either to union advocates or in the context of discussions about the union,” the words communicate that “support for the union is incompatible with continued employment.” Stated another way, when the words are considered in this particular context, the message becomes that the employee must choose between supporting a union and continuing to hold his job. Presenting an employee with such a choice obviously interferes with the exercise of Section 7 rights. It amounts to conditioning further employment on forsaking protected activi- ty. So, I must determine what effect the context of Roth’s May 6, 2006 speech has on the message conveyed. Applying an objective standard and considering the entire context, I must decide whether an employee reasonably would understand Roth to be saying that engaging in protected activity was “incompat- ible with continued employment.” Early in the speech, which Roth gave to bargaining unit em- ployees, he discussed the status of Respondent’s negotiations with the Union. He vigorously criticized two employee mem- bers of the Union’s negotiating committee and blamed them for the absence of a collective-bargaining agreement. Clearly, Roth made the statement “in the context of discussions about the union,” as the Board used that term in Jupiter Medical Cen- ter Pavillion, supra. Moreover, Roth strongly criticized those who had filed charges with the Board, and claimed that, because of the charg- es, Respondent had spent more than $200,000 in legal fees. Roth also said that Respondent had spent money to settle a case, “not because the Company had done anything wrong, but instead because it would have cost more to proceed with the defense.” These words clearly imply that the filing of unfair labor practice charges had resulted in Respondent paying mon- ey for something it did not do. After criticizing employees for filing charges and after stat- ing how much defending against those charges had cost Re- spondent, Roth mentioned an employee who reportedly had said that he didn’t care whether Respondent went out of busi- ness. Roth then referred to a second employee who “recently said that if he didn’t get his way, he’d put the Company out of business.” In this context, employees reasonably would believe that Roth was making a connection between the filing of unfair labor practice charges and an intent to put Respondent out of business. Roth’s further statement, that “they should find another job elsewhere and stop infecting the rest of us with all of their neg- ativity,” clearly implies that engaging in protected activity— filing charges with the Board—was incompatible with contin- ued employment. In effect, Roth’s words require employees to chose between engaging in protected activity and holding a job. In this context, the words interfere with, restrain, and coerce employees in the exercise of their Section 7 rights. Roth’s speech referred not only to employees filing charges but also to the conduct of employee members of the Union’s bargaining committee. Roth questioned their motives and criti- cized their performance. However, Section 7 of the Act pro- tects an employee’s right to serve on a union’s negotiating committee, and this protection does not depend on how well that person represented the bargaining unit’s interest. Thus, Roth’s words about finding work elsewhere not only interfered with an employee’s right to file charges with the Board, but also interfered with an employee’s right to engage in union activities, such as serving on the Union’s bargaining commit- tee. In sum, I conclude that, by the conduct described in com- plaint paragraph 15, Respondent violated Section 8(a)(1) of the Act. I recommend that the Board so find. 5. Complaint paragraph 16(a) Respondent has admitted that on June 8, 2005, it suspended employee Anthony Lyles for 1 day, as alleged in complaint paragraph 16(a). However, Respondent denies that it did so because employees engaged in concerted activity for mutual aid and protection, as alleged in complaint paragraph 17. Complaint paragraph 26 alleges that the June 8, 2005 sus- pension of Lyles violated Section 8(a)(1) of the Act, which Respondent denies. (It may be noted that the complaint does not allege the suspension to violate Section 8(a)(3). Complaint paragraph 27, which alleges that certain other conduct violated Section 8(a)(3), does not refer to complaint paragraph 16(a).) The events relevant to complaint paragraph 16(a) involve three of Respondent’s welders: Kenneth Small, Anthony Lyles, and Robert Bowser. Work flowed in assembly-line fashion, from welder to welder. The slowest employee’s pace would determine how quickly the work moved from employee to em- ployee and thus affect the productivity of the group. On June 8, 2005, Small made an “informal” (oral) complaint to Assistant Plant Manager James Smith. Based on Smith’s testimony, which I credit, I find that Small told Smith that em- ployees Anthony Lyles and Robert Bowser were “talking about union business on company time” and that this discussion was slowing the work. Smith later had Lyles and Bowser come to his office, where he spoke to them outside Small’s presence. Smith told the two welders that someone had complained about them “slowing down from their work” because they were “talking about union business.” Smith said that talking about union business was not permitted on company time, although doing so on breaktime and dinner time was all right. The complaint doesn’t allege that this statement violated that Act, although the General Counsel does argue that it constitutes evidence of animus. Its evidentiary import will be addressed below, but at this point, it may be noted that when Smith made the remark, the Union had been the certified bargaining repre- sentative for about 2-1/2 months. Lyles asked Smith if Kenneth Small was the employee who had complained. Smith declined to say. Lyles and Bowser returned to work. Smith’s testimony indicates that he did not consider his dis- cussion with Lyles and Bowser to be a disciplinary action. Bowser, however, testified that Smith told them he was giving them an oral warning. Based upon my observations of the wit- MESKER DOOR, INC. 613 nesses, I credit Smith’s testimony rather than Bowser’s, and find that Smith did not give either Lyles or Bowser a “warn- ing,” as that term is used to signify disciplinary action. Later that same day, Small made a “formal” (written) com- plaint to Smith. It stated (with grammar and spelling uncor- rected) as follows: I, Kenneth Small Life has been threaten and property meaning truck. Now I am suppose to be sucking James Smith Dick and also Robert Parker supposing to be sucking James Dick— was close enough to hear them. Now the whole plants shing away from me. Know one wants to work with me. At the time Smith received this complaint, he was mindful of news reports about a violent incident at an unrelated employer’s facility. Smith credibly testified that he took Small’s complaint seriously and conducted an investigation, which included inter- viewing Lyles and Bowser. They denied threatening Small in any way. Based on that investigation, management issued an “Em- ployee Disciplinary Report” dated June 9, 2005. This report informed Lyles that he was being “suspended for 1 day for making threatening remarks to Kenneth Small’s person and vehicle.” Lyles refused to sign it. Respondent did not impose any discipline on Bowser because, management concluded, only Lyles threatened Small and Bowser did not. In evaluating the evidence, I will follow the framework set out 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 Gov- ernment 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 Govern- ment must establish a link, or nexus, between the employees’ protected activity 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 (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 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). The General Counsel has established that Lyles engaged in protected activity, namely, discussing “union business” with fellow employee Bowser. Therefore, I conclude that the Gov- ernment has proven the first Wright Line element. Uncontradicted evidence also establishes the second Wright Line element. Assistant Plant Manager Smith testified that he told Lyles and Bowser that he had received a complaint about their discussing “union business” while on working time. Thus, management was aware of the protected activity. The General Counsel also has proven the third Wright Line element. The 1-day suspension certainly is an adverse em- ployment action. However, I conclude that the Government has not established the fourth Wright Line requirement, a link be- tween the protected activity and the adverse employment ac- tion. To demonstrate such a connection, the General Counsel notes that Lyles’ suspension came soon after Smith had learned about their discussion of “union business” and that this proxim- ity in time suggests a causal connection. The General Counsel also argues that when Smith told Lyles and Bowser that they could not discuss “union business” while on worktime, this instruction manifested Respondent’s hostility towards the Un- ion. The General Counsel correctly notes that a supervisor’s re- mark can provide evidence of antiunion animus even if the complaint does not allege that the statement violated Section 8(a)(1). Accordingly, if Smith’s statement to Lyles and Bow- ser—that they could not discuss “union business” while on working time—afforded evidence of unlawful motivation, I certainly would consider it. However, a careful assessment of Smith’s comment leads me to conclude that it does not provide evidence of unlawful motivation. The complaint does not require me to decide whether Smith’s remark violated Section 8(a)(1) and I reach no conclu- sions on that point. However, solely for the sake of analysis, I will assume here that the statement would indeed constitute an 8(a)(1) violation. That finding of a violation would not relieve me of the duty of evaluating how much weight to give this conduct in considering Respondent’s motivation for suspending Lyles. Typically, if an employer commits an 8(a)(1) violation and later disciplines an employee, the 8(a)(1) conduct provides some evidence relevant to the employer’s motivation for im- posing discipline. However, the weight properly attached to this evidence can vary widely, depending on specific circum- stances. For example, an 8(a)(1) violation which preceded the discipline by only a small time period probably would weigh heavier on the scales than a similar violation which was remote in time. On the other hand, an 8(a)(1) violation committed at another location by a supervisor totally uninvolved in the later disciplinary decision would carry much less weight. Thus, a judge must avoid a “cookie cutter” approach which automatically attaches the same probative weight to every 8(a)(1) violation. That would turn the issue of motivation into a conclusion of law when, in reality, it presents questions of fact which must be answered through a careful examination of the evidence. To assess how much any prior act reveals moti- vation for a subsequent act, the trier of fact must draw upon logic, common sense, and at least a smattering of familiarity with human nature. As noted above, I assume for the sake of analysis that Assis- tant Plant Manager Smith violated Section 8(a)(1) when he told Lyles and Bowser that they could not discuss “union business” during working time. That would be true regardless of Smith’s motivation for making the statement, because in general, proof DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 614 of an 8(a)(1) violation does not require evidence of motivation. The lawfulness of a statement depends not on why a supervisor said it but what effect it reasonably would have on employees’ exercise of protected rights. Logic and common sense urge that, should a supervisor pro- hibit employee discussion of a union during an organizing campaign, that action probably reflects some hostility towards the union. In the present case, Smith did not make such a statement during an organizing campaign, but 2-1/2 months after the Union had won that campaign, in fact, after the Re- spondent had recognized the Union and begun bargaining with it. Even in these circumstances, Smith’s remark still might suggest the presence of animus, but to determine its exact sig- nificance, the remark must be considered in its total context. Undisputed evidence establishes that when Smith told Lyles and Bowser that they could not discuss “union business” during working time, he also made clear that the prohibition was to prevent a slowdown in production. That explanation, of course would not prevent the rule itself from failing the lawfulness test because the reasonable effect, not intent, determines whether a work rule violates Section 8(a)(1), and this rule singled out protected activity for discriminatory treatment. However, Smith’s motivation in announcing the rule is rele- vant to another issue, the extent to which the rule evinces an intent to discriminate unlawfully against union adherents. Evi- dence which shows not only a hostile attitude towards the Un- ion but also a reason or inclination to act on it provides persua- sive evidence of a link between the protected activities and the adverse employment action. An absence of such evidence makes a nexus less likely. In considering this issue, I may take into account Bowser’s testimony that when Smith told them that they could not dis- cuss “union business” on working time, he explained, in Bow- ser’s words, that “our discussions were disrupting our work production.” Other testimony corroborates Bowser on this point and I find that Smith did give this explanation for the rule. Based on uncontradicted testimony, I also find that Smith told Bowser and Lyles that they could discuss “union business” during breaktime and dinner time. Although this statement would not render the rule itself any more lawful, it does make me a bit more reluctant to infer animus simply from the rule’s existence. Moreover, other evidence supports the conclusion that con- cerns about production, not hostility towards the Union, moti- vated Smith. The record establishes that Respondent was in- deed having production problems, and that these problems be- came so serious that Respondent ultimately replaced the plant manager with another. Thus, the rule owed its existence, at least in part, to a legitimate business-related reason. Another factor also must be considered. Smith knew that both Lyles and Bowser had been discussing “union business” during working time. However, Respondent only disciplined Lyles. If Respondent really was, in fact, hostile to union activi- ty, it likely would have disciplined both of the employees who had been talking about union business while production slowed. In these circumstances, I conclude that Smith’s rule prohibit- ing the discussion of union business during working time does not establish that antiunion animus was a substantial motivating factor in the decision to suspend Lyles. Therefore, to satisfy the fourth Wright Line requirement, the Government must pre- sent additional persuasive evidence of animus. The General Counsel contends that animus may be inferred from Respondent’s failure to call its vice president, Steve Frates, to testify. Citing International Automated Machines, 285 NLRB 1122, 1123 (1987), the General Counsel argues that “[w]here a witness to a disputed event is favorably disposed toward one party or another and that party does not call the witness, the Board infers that had the witness testified his ac- counts would have been adverse to the party with whom he is associated.” Certainly, in some instances a judge appropriately may draw an inference from a respondent’s unexplained failure to call one of its managers when that person has relevant knowledge con- cerning a disputed fact. However, the judge must be careful not to apply this principle in a way which improperly shifts the burden of proof. Additionally, prudence favors caution in using an absence of evidence to prove an affirmative fact. If the General Counsel had presented evidence which Re- spondent manifestly had needed to rebut, and if Frates clearly appeared to be the one who could do the rebutting, Respond- ent’s failure to call him would raise an eyebrow, or a suspicion, or perhaps even justify drawing an adverse inference. Such circumstances do not appear in this case. Respondent did not have to decide which witnesses to call until after the Government rested its case. Based on the evi- dence presented by the General Counsel, I cannot conclude that Respondent would consider it essential to call Frates, a member of senior management, rather than rely on the testimony of the managers at the plant level. Respondent’s counsel had cross- examined the Government’s witnesses and could make a judg- ment concerning their credibility. That assessment, in turn, could lead to the conclusion that rebuttal testimony by Frates was not necessary. My observations of the witnesses lead me to conclude that the testimony of Bowser and Lyles should be viewed with some skepticism. In particular, I have concerns about the reliability of Lyles’ testimony. Lyles, who suspected that Small had complained about him to Manager Smith, initially denied doing anything to retaliate. However, on cross-examination, he ad- mitted a retaliatory motive for redirecting a fan away from Small and, when Small protested, saying, “[W]e’re doing it now.” Although he did not admit doing anything to Small other than turning the fan away from him, Lyles’ acknowledgement that he had a retaliatory intent indicates a significant level of interpersonal conflict in the workplace. The existence of this tension increases the plausibility that management acted quick- ly to prevent its escalation. The presence of legitimate reasons for management’s action does not rule out the possibility that an unlawful motive also affected the decision to discipline, but such a motive should not simply be assumed without credible evidence. Absent the adverse inference which the General Counsel seeks because Frates did not testify—an inference I conclude is unwarranted and which I will not draw—the credible evidence is insufficient to establish the requisite nexus between the pro- MESKER DOOR, INC. 615 tected activities of Lyles and Bowser and the suspension which Lyles received. Accordingly, I further conclude that the Gov- ernment has not satisfied all four Wright Line requirements. In these circumstances, I recommend that the Board dismiss the allegations related to complaint paragraph 16(a). In case the Board should disagree with my conclusion that the General Counsel did not make what sometimes has been called a “prima facie case,” I will continue the Wright Line analysis. Should the burden shift to Respondent to rebut the Government’s case, I would conclude that Respondent’s evidence does not carry the rebuttal burden. In general, rebutting the General Counsel’s case requires a respondent to demonstrate that it would have taken the same action even if the employee receiving the discipline had not engaged in protected activities. A respondent typically offers proof, in the form of testimony and personnel records, showing that it had accorded the same treatment to similarly situated employees who were not union adherents. When a respondent has relatively few employees, it may not be possible to find another employee who engaged in the same type of conduct. In that circumstance, how the respondent dealt with a somewhat similar but not identical situation still may provide a basis for comparison. Respondent pointed to an instance in which it discharged an employee who had threatened another employee with a knife. Obviously, a threat with a weapon may warrant a different re- sponse than a threat solely with words. Although Respondent’s decision to discharge the knife-wielding employee is not pa- tently inconsistent with its decision only to suspend Lyles for a day, the two situations are not similar enough to allow a mean- ingful comparison. In September 2004, as a practical joke, employee Don Lar- son had placed “chocks” (pieces of wood) behind the tires of another employee’s vehicle so that when the driver backed up, he would be surprised by a bump. This attempted joke caused little hazard, but nonetheless, Respondent suspended Larson for a day. Here, again, the factual differences prevent the drawing of any firm conclusions. The situation factually closest to the suspension of Lyles for threatening Small involved, ironically, the contemplated sus- pension of Small for threatening another employee, Gary Bai- ley. Respondent issued Lyles the suspension notice in early June. About a month later, during a negotiating session, union committeeman Rollie Powell informed management that Ken- neth Small had threatened to hit another employee with some frame material. The record does not offer a definitive account of what happened, but it suggests that Bailey had come up to where Small was working and made a remark which reasonably would be considered insulting. Reportedly, Small reacted by saying that if Bailey didn’t get “out of my face with that stuff,” Small would pick up one of the frames and hit Bailey “up the side of the head.” Manager Torres met with Small, who admitted threatening Bailey. Union bargaining committee member Rollie Powell also attended the meeting in a capacity similar to shop steward. According to Torres, initially he intended to suspend Small but, after discussing the matter with Powell, decided instead to issue a written warning. It is easy to imagine—particularly for someone familiar with labor relations—the shop steward pleading and imploring on the employee’s behalf and the resolute manager gradually yielding to the steward’s continued entreaties. However, a careful examination of Torres’ testimony reveals a rather dif- ferent picture. From Torres’ testimony, which I credit, I infer that Torres, not Powell, advanced the proposal to reduce Small’s discipline from a suspension to a written warning. Torres testified that he remembered talking to Rollie [Powell] and telling Rollie that “I was prepared to give Kenneth [Small] a day off, because that is what we had done to Anthony Lyles, for making the threat. But since the—some time had passed, I was willing to either give him the 1-day suspension or give him a written write up. And Rollie asked that I give him a written write up.” The options which Torres offered Powell—suspending Small or simply warning him—provided as much real choice as ask- ing someone whether he would rather have a bowl of honey or be stung by the bees. No union official is going to choose the harsher discipline for an employee the union represents. Re- spondent, not the Union, bears responsibility for deciding to impose a milder discipline on Small than Lyles received. After Respondent issued the written warning to Small, the Union then requested that management reduce the discipline imposed on Lyles from a suspension to a warning. It also asked Respondent to pay Lyles for the day he didn’t work. Respond- ent would not agree to pay Lyles for this time, but it did agree to reduce Lyles’ discipline from a suspension to a written warn- ing. Thus, although Respondent disciplined both Lyles and Small for similar conduct—threatening another employee—Lyles received significantly harsher discipline than Small. Lyles lost a day’s pay. Small did not. The evidence therefore does not show that Respondent treated the union adherent the same way it treated another similarly situated employee. Accordingly, if the General Counsel had established the initial four elements, thus, placing a rebuttal burden on Respondent, I would con- clude that Respondent had not carried that burden. However, for the reasons stated above, I have concluded that the credited evidence does not prove the fourth Wright Line requirement. Therefore, I recommend that the Board dismiss the allegations associated with complaint paragraph 16(a). 6. Complaint paragraph 16(b) Complaint paragraph 16(b) alleges that on October 13, 2005, Respondent imposed a 1-day suspension on employee Rollie Powell. Respondent admits doing so. However, Respondent denies that it suspended Powell because of employees’ union activities and concerted protected activities and because em- ployees filed charges and gave testimony pursuant to the Act, as alleged in complaint paragraph 18. It also denies that its conduct violated Section 8(a)(1), (3), and (4) of the Act, as alleged in complaint paragraphs 27 and 28. Based on my observations of the witnesses, I conclude that Rollie Powell gave the most reliable testimony concerning the events relevant to these allegations. I resolve any conflicts in the testimony by crediting Powell. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 616 As noted above, Powell was a member of the Union’s nego- tiating committee. The Union and Respondent had scheduled a bargaining session for October 12, 2005. However, a Board agent investigating an unfair labor practice charge against Re- spondent arranged to interview witnesses on this same date. The agent scheduled interviews with Respondent’s witnesses in the morning on October 12, with other interviews set later in the day. Bargaining sessions typically began, or were scheduled to begin, at 8 a.m., but the Board agent’s visit on the morning of October 12 necessitated a change in plans. On October 10, 2005, Plant Manager Torres told Powell that they were moving the starting time of the October 12 meeting to 1 p.m. because of the Board agent’s visit. Powell suggested that they postpone the bargaining session rather than begin in the afternoon and Torres replied, “I’ll get back to you.” The next day, October 11, Torres informed Powell that the bargaining session would remain scheduled to begin at 1 p.m. the next day. Torres said, “We talked about it. We want you to come into work at 6:00 in the morning,” which was Powell’s usual starting time, and work until 11 a.m., time when Powell usually began his lunchbreak. Torres told Powell he could go home at that time and then go to the Hampton Inn, where the bargaining session would be held. On October 12, Powell left at 11 a.m., as Torres had instruct- ed, went home, changed clothes, and arrived at the Hampton Inn at 12:50 p.m., that is, 10 minutes before the bargaining session was scheduled to begin. The remaining members of the Union’s bargaining committee arrived and then went into the negotiating room at 1 p.m., discovering that no one on the Re- spondent’s bargaining team was there. When Respondent’s negotiators still had not arrived by 1:15 p.m., Union Representative Anderson tried unsuccessfully to reach the Respondent’s chief negotiator, Attorney Kaspers. Anderson then phoned Plant Manager Torres, but again got no answer. The union negotiators continued to wait. Powell had men- tioned to Anderson that he needed to be at the union hall by 3 p.m. to meet with the Board investigator, and that he intended to explain his situation to the Respondent’s representatives when they arrived and then leave. However, when Respond- ent’s negotiators still had not arrived by 1:50 p.m., he said, “I have to go. I don’t even know if these other people are going to show up. I have to go.” He then left. Respondent’s negotiators arrived somewhat later. Based on Regan Long’s testimony, which I credit, I find that the mem- bers of Respondent’s bargaining committee arrived some time around 2:30 p.m. Long further testified that Attorney Kaspers said, “I guess a thanks should be in order to you guys for tying us up all morning with the NLRB Charges.” Long quoted Kaspers as adding, “[T]he cost of all this litigation . . . whatever raises you was going to get, you’re not going to get.” Kaspers, who represented Respondent at the hearing, was present when Long gave the testimony quoted above. Later, Kaspers took the witness stand and thus had an opportunity to deny the words which Long attributed to him. Kaspers did not. Accordingly, I find that Kaspers did make the statement quoted above. For the reasons discussed above in connection with com- plaint paragraph 12, I have concluded that Kaspers’ statement violated Section 8(a)(1) of the Act. Additionally, Kaspers’ words on this occasion are consistent with other evidence indi- cating that the unfair labor practice charges vexed Respondent considerably. When Kaspers asked about Powell’s whereabouts, Long re- plied that he had an appointment. The record does not indicate that any member of the Union’s negotiating committee revealed that Powell’s appointment was with a Board investigator. The negotiators met again the next day, October 13. Kaspers asked Powell where he had been the previous day. Powell replied that he was “taking some people out for an NLRB in- vestigation.” According to Powell, Kaspers said, “The Compa- ny doesn’t pay you to investigate. You are suspended for a day. That will be tomorrow. Enjoy your day off. You are going to lose a day from your attendance.” Kaspers added, “You lied. You weren’t here.” At this point, Long interjected that Powell had been at the bargaining location. Powell confirmed that he had been pre- sent. “Yes, I was here,” he told Kaspers. “You weren’t here.” Union Representative Anderson then told Kaspers, “We tried to get hold of you twice.” Powell told Kaspers that he had not lied and hadn’t done an- ything he felt was wrong. Kaspers replied, “No, you lied. That’s it. And you are going to get your day off.” In general, other witnesses corroborate Powell’s testimony. Although there are some differences between Powell’s account and those of other witnesses, that is not surprising considering the amount of time which elapsed between the event and the hearing. Minor differences commonly appear in the testimony of various witnesses to the same event, except, of course, in the rare instances of collusion. Accordingly, it doesn’t damage the credibility of either Pow- ell or Long that, for example, Powell quoted Kaspers as saying that the “Company doesn’t pay you to investigate” but Long quoted him as saying, “[W]e let you off work to come to nego- tiations, not to go to the NLRB agent.” Well more than a year had elapsed between the event and the testimony about it. It is not surprising that, although both witnesses recalled the gist of Kaspers’ remark, they differed as to his exact words. It also is not surprising that Powell provided more detail. Kaspers’ announcement that Powell would be suspended, and his refusal to back down even after hearing the circumstances, harmed Powell directly in a way it did not harm the other wit- nesses. Typically, the most vivid memories concern events which evoke strong emotion. Powell, more than anyone else, had reason to react emotionally to the announcement that he would be suspended. But even more significantly, Kaspers insisted that Powell had lied. Almost always, calling someone a liar will prompt an emotional response in that person. Moreover, Kaspers was present during the hearing when Powell gave the testimony quoted above. Later, Kaspers took the stand as a witness for Respondent. Most certainly, it would have been in Kaspers’ interest, and in his client’s interest, to deny making the statements which Powell had attributed him. However, Kaspers did not. MESKER DOOR, INC. 617 Although Kaspers, as a witness, did not deny making the statements quoted above, Kaspers, as the Respondent’s attor- ney, did assail Powell’s credibility during oral argument. Kaspers pointed to a seeming inconsistency between Powell’s testimony on direct and cross-examination. Kaspers noted that on direct examination, Powell had testi- fied that, at the beginning of the October 13 bargaining session, Kaspers asked Powell where he had been the previous day and Powell replied that he had been taking some people out for an NLRB investigation. However, at one point during cross- examination, Powell stated that Kaspers had announced the suspension without asking Powell where he had been. Here is the specific testimony to which Kaspers referred: Q. Mr. Powell, when the Company went to bed on the evening of October 12th, all it had was knowing that you left at 11:00 in the morning to attend bargaining, and no further communication that your absence was for any oth- er reason than attending bargaining. MR. DOYLE: I object, Your Honor, to the—to counsel calling for Mr. Powell to advise what information the Company had. JUDGE LOCKE: Rephrase the question, please. . . . . BY MR. KASPERS: Q. As far as you know, the only information that the Company had when it went to bed on the evening of Octo- ber 12, was that you had taken off work at 11:00 to attend the bargaining, and that you—and no other communica- tion was made as to any reason other than attending bar- gaining, that you missed the second half of the day. A. If you had asked me, I would have told you when I came in the next day. You didn’t ask me. You just arbi- trarily said, “You’re a liar. You’re suspended.” Clearly, Respondent has identified an inconsistency between Powell’s testimony on direct and cross-examination. Potential- ly, the testimony on cross-examination, quoted above, could cause significant damage to Powell’s credibility, because it appears to amount to an admission which was not in Powell’s interest to make. The complaint alleges that Respondent’s suspension of Pow- ell violated both Section 8(a)(3) and (4) of the Act, the latter making it unlawful to discriminate against an employee be- cause he had filed charges or given testimony under the Act. If Respondent did not know about Powell’s activities with the Board agent at the time management decided to suspend him, that lack of knowledge would undercut the 8(a)(4) allegation. Powell’s testimony on cross-examination, that Kaspers hadn’t asked him where he had been, supports a finding that manage- ment did not know about Powell’s participation in the NLRB investigation. However, three other witnesses—Morris Anderson, Regan Long, and Anthony Johnson—gave testimony supporting the conclusion that Powell had disclosed his October 12 protected activities before Respondent suspended him. In light of this testimony, I believe Powell’s inconsistent answer, quoted above, resulted from confusion. Mr. Kaspers’ initial question did not concern what Powell told Respondent on October 13, but rather what he told Re- spondent on October 12. After an objection, I asked Respond- ent’s counsel to rephrase the question. In doing so, Respond- ent’s counsel again focused on the knowledge Respondent pos- sessed on October 12. It is quite possible that by this point, the witness had become confused. Respondent also pointed to the following testimony which Union Representative Anderson gave on cross-examination: Q. Do you remember the first substantive thing I said on October 13 when that day started, I asked Rollie Powell a question, I said, Rollie, did you obtain authorization from the company to leave work at 11:00 o’clock yester- day so you could attend bargaining? And he responded, yes. [A.] Yes, he did. Q. And I responded by saying, then I’ve got good news and bad news. The good news is you are not fired the way Ray Brooks was fired when he falsified the reason that he was absent from work. The bad news is for not giv- ing the company a straight reason why you were absent af- ter 11:00 o’clock yesterday, you brought yourself a one- day suspension which will be served tomorrow because we are not negotiating tomorrow and if we suspend you today that would interfere with the bargaining. A. I remember that verbatim. You just let exactly the way you said it. At first glance, this testimony may seem to be at odds with Anderson’s testimony on direct examination. Specifically, Anderson had testified that Attorney Kaspers and Manager Torres had asked Powell about his whereabouts and what he was doing on October 12, “and after he answered them the company took a short break. They took a recess and I believe after the recess they came back to the room where we were negotiating the contract and I believe at that time [was] when the company counsel informed Mr. Powell that he was going to be suspended one day for giving the company—I believe he said false information.” During cross-examination, Respondent did not ask Anderson specifically whether Kaspers and Torres had inquired about Powell’s whereabouts and activities the previous afternoon. Respondent also didn’t ask Anderson if Powell had disclosed his involvement in the Board’s investigation. Accordingly, I do not conclude that Anderson’s testimony on cross-examination necessarily is inconsistent with his testimony on direct exami- nation. As discussed above, the testimony of another witness, Regan Long, leaves no doubt that Respondent knew about Powell’s participation in the Board investigation before it informed him he had been suspended. The testimony of the third employee on the Union’s bargaining committee is equally convincing. During the Respondent’s cross-examination of Anthony John- son, Kaspers sought to elicit testimony similar to Anderson’s testimony on cross-examination, excerpted above. Johnson balked: Q. —the first thing I said when I sat down at that table was asking Rollie Powell did you get company authoriza- DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 618 tion to be absent to leave work at eleven o’clock yesterday to attend the bargaining, and he said yes. A. Huh uh. No. Seemed like what you did first thing was ask him where he was. You didn’t—you asked him where he was because—and then he told you where he went. Plant Manager Torres did not testify that Powell disclosed his protected activity before Kaspers announced the suspension on October 13. However, it doesn’t squarely exclude that pos- sibility. Significantly, one portion of Torres’ testimony casts doubt on the sequence of events propounded by Respondent’s counsel. In that scenario, Kaspers simply asked Powell if he had obtained authorization to leave work at 11 o’clock a.m. to attend bargaining and then, when Powell answered affirmative- ly, then and there told Powell that he was being suspended for a day. Such a fast-paced chain of events would indicate that Kaspers made the decision, on the spot and without consulting his client, to suspend Powell for a day. However, when asked who made the decision to suspend Powell, Torres testified, “I believe that was my decision.” For still another reason, I reject the argument that Kaspers, on October 13, simply asked Powell if he had received permis- sion to leave work at 11 a.m. to attend bargaining, received an affirmative answer and then, without further inquiry, told Pow- ell he was being suspended. Such a brusk and precipitous ac- tion would be out of character. During the 9 days of hearing, Kaspers consistently impressed me with his intellect, his meticulous attention to detail, and his civility and professionalism. A lawyer of his intellect certainly would recognize that Powell’s absence from the bargaining table on October 12 did not, by itself, indicate that Powell had intended to deceive his supervisor when he received permission to leave work early. A lawyer of Kaspers’ meticulousness would not jump to a hasty conclusion about Powell without first ascertaining all the facts, including what Powell was doing on the afternoon of October 12 and why he wasn’t at the bar- gaining session. A lawyer of Kaspers’ civility and profession- alism would not accuse Powell of lying without first inviting him to present his side of the story and considering it. In sum, it would be quite out of character for Kaspers to im- pose discipline summarily on Powell without at least asking what Powell had been doing the previous afternoon and why he wasn’t at the bargaining table. Moreover, Kaspers took the witness stand after having heard other witnesses testify that he had asked Powell about his activities the previous afternoon and that Powell had revealed his participation in the Board’s investigation. If this testimony had not been true, Kaspers would have contradicted it when he took the witness stand. However, he did not. For all these reasons, I conclude that, before informing Powell that he was suspended, Kaspers learned that Powell had been participating in the Board’s inves- tigation. It may be noted that even if I assumed, for the sake of analy- sis, that Respondent had not known about Powell’s protected activity before Kaspers announced the suspension, the immedi- ate objections plainly placed Respondent on notice that Powell had been engaging in protected activity. The suspension was not to take effect until the next day, so Respondent had time to rescind it. However, notwithstanding its knowledge of Pow- ell’s protected activities, it proceeded with the suspension. Before deciding which analytical framework should be used in evaluating the facts, some further discussion may be war- ranted concerning the exact reason that Respondent disciplined Powell. Based on Powell’s credited testimony, I have found that when Kaspers announced the suspension, he told Powell, “The Company doesn’t pay you to investigate. You are sus- pended for a day. . . . You lied. You weren’t here.” This re- mark indicates that Respondent suspended Powell for suppos- edly telling a falsehood. It is important to ascertain, as exactly as possible, the nature of the claimed “falsehood.” Although Kaspers told Powell that the “Company doesn’t pay you to investigate,” Respondent did not pay Powell or any of the Union’s negotiating committee members for the time they spent in negotiations. Rather, the Union paid them. While at the bargaining table, they were off Respondent’s clock and on the Union’s. Accordingly, I cannot conclude that Respond- ent disciplined Powell for taking money to perform a task and then failing to do it. Instead, Kaspers’ claim that Powell lied appears to mean that Powell gave a false reason for requesting to leave work early. In fact, Powell did not request to leave work early but instead was following Torres’ instruction. But even assuming for the sake of analysis that Powell had, in fact said, “I’m leaving work early to attend the bargaining session,” that statement would not have been a lie. Powell indeed had been present at the ne- gotiating site at the appointed time, a fact Respondent knew when it imposed the discipline. Powell’s presence at the bar- gaining table clearly negates any inference that he falsely stated his intentions when leaving work. Nonetheless, Respondent either is claiming that Powell gave one reason for leaving work early while actually intending to do something else, or else that he later gave Respondent a false explanation concerning where he had been. Thus, Respondent issued Powell an “Employee Disciplinary Report” which stated, in part: On 10/12/05 Rollie Powell left Mesker Door at 11:00 a.m. for the stated purpose of attending a bargaining ses- sion between the United Steelworkers Union and Mesker Door scheduled for that afternoon. While the commence- ment of the scheduled bargaining session was somewhat delayed, the bargaining session lasted more than 2-1/2 hours on 10/12. Rollie Powell was not present for and did not participate in any part of the more than 1-1/2 hour bar- gaining session. Mr. Powell’s absence during the last half of the workday on 10/12 was, therefore, not only unex- cused, but the reason he provided to the Company prior to leaving work on 10/12 proved to be a false reason. While providing the Company with a false reason for being ab- sent from work is a serious offense for which immediate termination may be appropriate (see, for example, the 2004 termination of Roy Brooks for falsifying the reason for his absence from work), in the interest of reducing the negative effect that Mr. Powell’s absence from the 2-1/2 MESKER DOOR, INC. 619 hour bargaining session on the afternoon of 10/12 had on the progress that the Union and the Company have been making at the bargaining table, the decision was made not to terminate Mr. Powell’s employment but to instead give him only a one day suspension without pay for falsifying the reason for his absence from work on the afternoon of 10/12. The phrase “providing the Company with a false reason for being absent from work” reasonably could imply either that an employee lied to obtain permission to leave or, after returning from an absence, lied about what he had been doing or where he had been. The record establishes that Powell had done nei- ther. The credited evidence convincingly establishes that Powell did not falsify the reason for his absence from work at any time. Even assuming that Powell had said he was leaving work to go to the bargaining session, that is precisely what he did. Moreo- ver, he later explained to Respondent’s negotiators exactly where he had been, namely, with the Board agent. Respondent therefore had no reason to accuse him of any kind of falsehood. The process of applying the law to the facts must begin with a determination of what analytical framework should be used to evaluate the evidence. In general, the Board does not perform a Wright Line analysis when an employer ostensibly disciplines an employee for misconduct committed while the employee was engaged in protected activity. In that circumstance, the appropriate inquiry focuses on whether the claimed misconduct is so egregious that it removes the employee from the protec- tion of the Act. Beverly Health & Rehabilitation Services, 346 NLRB 1319 (2006). Sometimes, this method of analyze is called the Burnup & Sims framework because of the Supreme Court decision which informed its development. See NLRB v. Burnup & Sims, Inc., 379 U.S. 21 (1964). Under the Burnup & Sims framework, the General Counsel bears the threshold burden of establishing that an employee had engaged in protected activity and that the disciplinary action resulted from conduct associated with that activity. Once the General Counsel has carried this burden, the respondent may rebut the Government’s case by showing that it held an honest belief that the employee had engaged in misconduct during the course of that protected activity. Proof that the respondent held such an honest belief defeats the Government’s case unless the General Counsel then can prove that the employee actually did not engage in the misconduct. See, e.g., Pratt Towers, Inc., 338 NLRB 61 (2002). However, this analytical framework should not be used where the respondent did not hold an honest, good-faith belief that the disciplined employee had engaged in misconduct. If such a belief does not exist, then the Board analyzes the facts using the Wright Line framework. See Primo Electric, 345 NLRB 1187 (2005). Accordingly, whether the Burnup & Sims or the Wright Line framework should be used in this case turns on whether Re- spondent held an honest, good-faith belief that Powell had en- gaged in misconduct. The credited evidence compels a conclu- sion that Respondent did not hold such a good-faith, honest belief. Respondent’s assertion that Powell lied assumes that Powell asked management for permission to leave work at 11 a.m. on October 12 and, to support that request, falsely represented that he needed to leave at that time to participate in the negotiations. However, Powell’s credited testimony establishes that he did not initiate such a request. Rather, Plant Manager Torres in- formed Powell of the change in meeting time and instructed Powell to leave work at 11 a.m. Thus, Respondent’s argument that Powell lied is not based on anything Powell said to Plant Manager Torres. Rather, he supposedly misled management by what he did not say. Thus, Respondent elicited this testimony from Plant Manager Torres: Q. At any point on October 12, did Rollie Powell communicate to you or to your knowledge to anyone in the company that he needed to be absent from work for any reason other than to attend the bargaining? A. No, he did not. Powell’s supposed failure to request time off for another rea- son becomes, in Respondent’s argument, a lie. However, this argument not only is disingenuous but transparently so. Credited evidence establishes that the management negotia- tors did not arrive at the meeting place until about 1-1/2 hours after the scheduled time. The Union tried unsuccessfully twice to contact them but could not get through. Moreover, it should have been easy for the Respondent’s negotiators to get a mes- sage to the Union’s bargaining team by calling the front desk of the hotel where they were going to meet. Instead, the union negotiators waited without knowing when their counterparts would arrive, if at all. On October 13, Powell made it clear to Kaspers and Torres that he had indeed been present at the meeting site, where he waited for nearly an hour before deciding to leave. Others on the Union’s team confirmed to Kaspers and Torres that Powell had been present and Union Representative Anderson told them that he had tried unsuccessfully, twice, to contact them by tele- phone. Both Kaspers and Torres testified, but neither offered any reason to disbelieve the information the union negotiators had provided. If Respondent had a reason to doubt that Powell had been present at the meeting site on October 12, surely Kaspers and Torres would have described such a reason in their testi- mony. Likewise, if Respondent had any reason to doubt that the union negotiators had tried to contact the management team, Kaspers and Torres would have made this reason clear when they took the witness stand. Respondent has cited no basis for an honest belief that Pow- ell had tried to deceive management or otherwise had told a lie. Moreover, the information provided by the Union’s negotiators, including Powell himself, gave Respondent good reasons to believe that Powell had not been deceptive. Respondent ad- hered to its claim—that Powell had lied—even in the absence of evidence to support that claim and in the presence of evi- dence which contradicted it. More than that, Respondent of- fered no explanation for doing so. Accordingly, Respondent has failed to establish that it held an honest, good-faith belief that Powell had engaged in misconduct. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 620 Were I to conclude that Respondent held an honest belief that Powell had lied, or otherwise engaged in misconduct, I would then examine whether such misconduct was so egregious as to deprive him of the protection of the Act. Here, Powell’s only possible “misconduct” was to leave the bargaining site before the management negotiators arrived. Therefore, were I to analyze this case under the Burnup & Sims framework, I would conclude that this “misconduct”—if it can even be called misconduct—wasn’t so egregious. After waiting long past the scheduled starting time, and after attempts to contact the Re- spondent’s negotiators had been unsuccessful, Powell left. As noted above, Respondent wasn’t paying Powell for this time it kept him waiting without explanation. Powell had no duty to continue waiting, on his own time, for Respondent’s tardy ne- gotiators. At that point, leaving was not misconduct. However, I do not analyze the facts using the Burnup & Sims framework. Because Respondent did not hold an honest belief that Powell had engaged in misconduct, use of the Burnup & Sims framework isn’t appropriate. Primo Electric, above. Therefore, I will examine the facts using the Wright Line pro- cedure described earlier in this decision. The General Counsel has satisfied the first Wright Line re- quirement by proving that Rollie Powell engaged in activities protected by the Act. Powell’s service as a member of the Un- ion’s negotiating committee certainly enjoys the Act’s protec- tion. Moreover, on September 9. 2005, Powell filed an unfair la- bor practice charge against Respondent. This charge, docketed as Case 10–CA–35863, actually identifies the Charging Party as the United Steelworkers of America, AFL–CIO/CLC. How- ever, Powell signed the charge, which listed his title as “Nego- tiating Committee Member.” Filing this charge, of course, con- stituted protected activity. Powell also engaged in protected activity on October 12, 2005, when he met with the Board agent investigating the charge. The record also establishes the second Wright Line element by proving that the Respondent knew about Powell’s protected activities. Powell’s service as a member of the Union’s bar- gaining committee brought him into contact with management and identified him with the Union. Respondent also had notice of Powell’s protected activity fil- ing the unfair labor practice charge. As discussed above, Pow- ell’s name and signature appear at the bottom of it. Respondent also knew that Powell had met with the Board investigator on October 12, 2005, because the next day, Powell told Respond- ent’s attorney and plant manager. Powell made this disclose in explaining why he had not participated in the October 12 bar- gaining session. The Government also has proven the third Wright Line ele- ment. Respondent suspended Powell for 1 day and this suspen- sion certainly constituted an adverse employment action. Finally, the General Counsel has satisfied the fourth Wright Line requirement by proving a connection between Powell’s protected activities and the adverse employment action. Ample persuasive evidence demonstrates that Respondent’s hostility to Powell’s protected activities was a substantial and motivating factor in the decision to suspend him. The evidence leaves no doubt that Powell’s filing an unfair labor practice charge annoyed Respondent’s management. Indeed, the Respondent’s attorney’s ire flared the very day before he suspended Powell. Based on the testimony of Regan Long, whom I credit, I find that when Attorney Kaspers arrived at the bargaining session on October 12, 2005, told the union negotiators, “I guess a thanks should be in order to you guys for tying us up all morning with the NLRB Charges.” Kaspers then referred to the “cost of all this litigation” and told the employees that they would not be receiving the raises they expected. The next day, when Kaspers learned that Powell had been meeting with the Board agent the previous afternoon, he sus- pended Powell. This sequence establishes a nexus between Powell’s protected activity and the adverse employment action. In sum, the General Counsel has proven all four of the Wright Line elements. At this point, the burden of going for- ward normally would shift to the Respondent, to present evi- dence that it would have taken the same action even in the ab- sence of protected activity. However, when a respondent has asserted a pretextual reason for taking an adverse employment action, that resort to pretext forfeits the respondent’s right to present rebuttal evidence. Limestone Apparel Corp., 255 NLRB 722 (1981) (“a finding of pretext necessarily means that the reasons advanced by the employer either did not exist or were not in fact relied upon, thereby leaving intact the inference of wrongful motive established by the General Counsel”); Golden State Foods Corp., 340 NLRB 382, 385 (2003) (“if the evidence establishes that the reasons given for the Respond- ent’s action are pretextual . . . the Respondent fails by defini- tion to show that it would have taken the same action for those reasons, absent the protected conduct . . . .”). Just as the evidence establishes that Respondent did not have an honest, good-faith belief that Powell had engaged in mis- conduct, it reveals that Respondent tried to hide its discrimina- tion behind a pretext. Indeed, when ranked against the pretexts typically encountered in labor law, this one is particularly obvi- ous, transparent, and unconvincing. As a counterfeit reason for the discipline, it appears as genuine as a $5 bill showing a bald Lincoln. Respondent claims it suspended Powell because he lied about his intention to attend the bargaining session. Respond- ent’s actions belie that claim. Even when presented with un- contradicted evidence that Powell had, in fact, been present at the meeting site at the appointed time, and therefore had not misrepresented his intention, Respondent persisted in imposing the discipline. Respondent’s determination to punish Powell existed independent of the reason Respondent proffered for it. Respondent’s true, retaliatory reason appears all too obvious in the words and actions of its chief negotiator. More than once, Kaspers announced that employees would not receive any wage increase because of the pending unfair labor practice charge. The existence of the charge clearly bothered him. Then, on October 12, he found himself meeting with a Board investigator concerning the charge, and, in fact, spending more time than he had planned for that purpose. Powell’s decision to meet with the Board agent later that same day, rather than to wait longer for Kaspers and Torres to MESKER DOOR, INC. 621 arrive at the bargaining site, did more than remind Respondent of Powell’s initial involvement with the charge. Now, it ap- peared, Powell had “stood up” the management negotiators, choosing to meet instead with the Board investigator. Thus scorned, Respondent reacted with fury. Kaspers accused Pow- ell of lying and then suspended him. As the Board observed in Rood Trucking Co., 342 NLRB 895 (2004), a finding of pretext defeats any attempt by a re- spondent to show that it would have discharged a discriminatee even absent protected activities. Accordingly, I conclude that Respondent has failed to rebut the General Counsel’s case. Because Powell’s protected activities included signing the unfair labor practice charge and meeting with the Board agent, Respondent’s retaliation for those activities violated Section 8(a)(4) as well as Section 8(a)(3) and (1) of the Act. I recom- mend that the Board so find. 7. Complaint paragraph 16(c) Complaint paragraph 16(c) alleges that on about October 13, 2005, Respondent imposed points on Rollie Powell under the Respondent’s attendance system. Respondent admits this alle- gation but it denies that it did so because of employees’ pro- tected activities, as alleged in complaint paragraph 18. Re- spondent also denies that its action violated Section 8(a)(1), (3), and (4), as alleged in complaint paragraphs 26, 27, and 28. During the hearing, the parties entered into the following stipu- lation: Without waiving Respondent’s position that every- thing which occurred after May 8, 2006 was lawful, the parties stipulate that General Counsel’s Exhibit 21a is an attendance point system that the company and the union negotiated and agreed upon in July 2005 and which was implemented effective August 1, 2005. General Counsel’s Exhibit 21b is the attendance point system that has been in effect since June 6, 2006. Under the negotiated attendance policy, an employee who received a written warning also would receive a negative at- tendance point, and an employee who received a 1-day suspen- sion also would receive two negative attendance points. The Respondent also could assess negative points for absences. The system also provided for positive “earn back points” which would cancel out negative points. Employees received such points for good attendance. When an employee’s score reached 9 positive points, the employee could “sell back” 6 of them for a paid day off. When Respondent suspended Powell in October 2005, that disciplinary action automatically resulted in Powell receiving negative attendance points. The complaint treats this imposi- tion of points as a separate act of unlawful discrimination, but it can also be regarded as a part of the violation alleged in com- plaint paragraph 16(b). Either way, the imposition of negative points violated Sec- tion 8(a)(1), (3), and (4) of the Act. But for Respondent’s un- lawful suspension of Powell, he would not have been assessed negative points under the attendance system. Accordingly, the imposition of points was unlawful. I recommend that the Board find that Respondent, by this action, violated Section 8(a)(1), (3), and (4) of the Act. Powell’s employment with Mesker Door ended in September 2006. From the present record, it is unclear whether the unlaw- ful imposition of negative points resulted in Powell being ineli- gible for a paid day off to which he otherwise would have been entitled. Such an issue must be left for resolution in the compli- ance phase of this proceeding. 8. Complaint paragraph 16(d) Complaint paragraph 16(d) alleges that on about June 21, 2006, Respondent discharged employee Cecil Herren. Re- spondent admits this allegation. Complaint paragraph 19 alleges that Respondent discharged Herren because employees advised Respondent of their inten- tion to seek recourse for perceived discrimination for union activities through the Board and to discourage employees from filing charges and giving testimony under the Act. Respondent denies this allegation. Respondent also denies that Herren’s discharge violated Section 8(a)(4) and (1) of the Act, as alleged in complaint paragraph 28. (The complaint does not allege that Herren’s discharge violated Section 8(a)(3) of the Act.) Herren was a production employee and, on June 16, 2006, was operating a punch press making steel doors. The settings on such a machine do not stay fixed indefinitely but may drift over time. Moreover, the metal being punched may vary from piece to piece. Therefore, Respondent has a rule that an opera- tor must measure every 20th door to make sure that it meets specifications. Supervisor Richard Watson reminded Herren, on June 16, 2006, of this “check every 20” rule. According to Watson, Herren said that he was good enough at his job to run 60 doors without having to check. Plant Manager Roth, who also was present at this point, quoted Herren saying that he was good enough at his work he only had to check every 50 doors. Addi- tionally, Assistant Plant Manager Smith testified that, on this same day, he heard Herren say that he was good enough that he only had to check every 50 doors. However, it is not entirely clear that Smith was referring to the same conversation Roth and Watson described. Herren denied saying, in this conversation, that he was good enough that he only had to check every 50 doors, but he admit- ted making that statement later the same day. He testified as follows: Q. At the front end of that day did you have a discus- sion with James Smith and Rick Watson in which you said, I am good enough at this, I only have to check my doors every 50? A. No. That was after the doors were already messed up. For two reasons, I do not credit Herren’s denial. First, three other witnesses, Roth, Smith, and Watson, testified that he said he was good enough that he only had to check every 50 doors during the discussion early in the day. This 3-to-1 ratio, alt- hough not dispositive, certainly does not weigh in Herren’s favor. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622 Second, as discussed below, Herren’s work on June 16, 2006, wasn’t good, and 20 doors had to be scrapped. If we assume that Herren had not bragged, earlier in the day, that he didn’t need to check every 20th door because of his skill, it would be quite odd for him to make this claim later, while dis- cussing the bad doors coming off his press. On the other hand, if he had made such a statement to the supervisors before doing the bad work, it naturally would come back to haunt him in the later discussion. For these reasons, I find that Herren did, in this early morn- ing conversation, claim that his skill exempted him from need- ing to follow the check-every-20 rule. Notwithstanding Her- ren’s claim, Supervisor Watson told him to follow the rule. He did not. Instead, he made 40 faulty doors, 20 of which were unusable and the remaining 20 marginally usable. On June 19, 2006, Supervisor Watson and Assistant Plant Manager Smith called Herren to the office, suspended him for 1 day, and reassigned him to work on another task which had a lower rate of pay. Herren testified that he had expected to be disciplined be- cause “I messed them [the doors] up, it was my fault.” Howev- er, the severity of the discipline surprised him. Herren told the supervisors that he considered the discipline unjust and wanted to go to arbitration. According to Herren, he also told them that he was going to “seek grievance through the National Labor Relations Board.” However, both Smith and Watson testified that Herren never mentioned going to the Board. Watson wrote an “Employee Disciplinary Report” summarizing the meeting. This report included an “Employee’s Remarks” section in which the fol- lowing handwritten comment appears: “This is unjust and wishes to go to arbitration.” The report makes no reference to the Board. Considering that Smith’s testimony corroborates Watson’s on this point, and that no mention of the Board appears in the employee disciplinary report, I conclude that Herren mentioned only arbitration, and not going to the Board, during the disci- plinary interview on June 19, 2006. The witnesses agree, how- ever, that during the meeting, Herren said that the supervisors were imposing this discipline because he had voted for the Union, and that the supervisors denied it. It should be noted that the arbitration procedure mentioned by Herren did not arise out of any agreement with the Union. Indeed, Respondent had withdrawn recognition from the Union more than a month earlier, on May 8, 2006. The record sug- gests that Respondent created the arbitration procedure, but does not disclose exactly when Respondent did so. As noted above, on June 16, 2006, Plant Manager Roth had heard Herren brag that his skill made it unnecessary for him to follow the rule. Roth previously had been plant manager at the Huntsville facility, and then had returned from retirement in February 2006 to assume that position again. Roth had some experience with Herren from his earlier duty as plant manager. Either Herren’s bragging on June 16 or his massive mistake later that day, or both, reminded Roth of that earlier experience, and Roth decided to review Herren’s personnel record. He wanted to find out about Herren’s performance during the peri- od before Roth came back from retirement. Documents in the personnel file indicated problems with Herren’s work, including instances in which Herren had failed to check his parts, the same type of error which had resulted in the 40 bad doors. In particular, it troubled Roth that there were, in Roth’s words, “many reports of insubordination. Spitting on the floor after being told not to and things of that nature.” In light of these previous incidents, Herren’s bragging that his skill placed him above the rule took on additional significance. Roth testified that, after reviewing these records, he “had no reason to think that [Herren] wouldn’t continue to [do] the same things that he’d been doing.” Roth converted the suspen- sion into a discharge. Following the Wright Line framework, I conclude that the General Counsel has proven that Herren had engaged in some protected activity. Specifically, Herren had testified in a previ- ous Board proceeding in August 2005. The General Counsel argues that Herren engaged in other protected activity more proximate to his discharge. According to Herren, when he received the suspension, he told the super- visors that Respondent was taking that action because Herren voted for the Union. Herren also testified that he told the su- pervisors he would take the matter to arbitration and to the Board. For the reasons discussed above, I do not credit Herren’s tes- timony that he told the supervisors he would go to the Board. However, I do find that Herren told the supervisors that he would take the matter to arbitration. If the arbitration procedure had arisen out of negotiations be- tween Respondent and the Union, Herren’s statement that he intended to use this procedure would constitute an assertion of a right under a collective-bargaining agreement and therefore would enjoy the Act’s protection. White Electrical Construc- tion Co., 345 NLRB 1095 (2005); NLRB v. City Disposal Sys- tems, 465 U.S. 822, 840 (1984); Interboro Contractors, Inc., 157 NLRB 1295, 1298 (1966), enfd. 388 F.2d 495 (2d Cir. 1967). However, the arbitration procedure was not created by contract. The General Counsel argues that Herren’s expression of in- tent to seek arbitration still would enjoy the Act’s protection because arbitrator would decide whether Herren had been dis- criminated against because of his support for the Union, a ques- tion relating to the Act. “Mr. Herren clearly indicated an intent on his part to vindicate rights that are provided to employees only by the National Labor Relations Act,” the General Coun- sel asserts, “and discrimination for that invocation is a violation of Section 8(a)(4).” The language of Section 8(a)(4), however, may not be quite as wide as the General Counsel claims. The provision makes it unlawful “to discharge or otherwise discriminate against an employee because he has filed charges or given testimony un- der this Act.” 29 U.S.C. § 158(a)(4). Nothing in Section 8(a)(4) specifically refers to vindicating rights that are provided to employees only by the Act. Additionally, using the noncon- tractual arbitration procedure would not constitute either union activity or activity undertaken by employees in concert for their mutual aid and protection. Absent some specific case authority, I will not conclude that the Act protects Herren’s remark about taking the matter to arbitration. MESKER DOOR, INC. 623 Herren did engage in one other protected activity. After be- coming disaffected with the Union, Herren signed the petition on which Respondent relied in withdrawing recognition. Be- cause the Act protects both this petition signing and Herren’s earlier testimony in the August 2005 Board proceeding, I con- clude that the General Counsel has established that Herren en- gaged in protected activity. Additionally, I conclude that the government has satisfied the second Wright Line requirement. Respondent obviously knew about Herren’s testimony in a proceeding to which it was a party. Respondent also knew about Herren’s signing the peti- tion, because Respondent received that petition and relied on it when it withdrew recognition from the Union. The General Counsel also has established that Herren suf- fered an adverse employment action. Discharge was adverse to his employment. However, the Government has not proven a connection be- tween Herren’s protected activity and his discharge. About 10 months elapsed between Herren’s testimony in the Board pro- ceeding and his discharge, so I do not infer any connection from the timing. Moreover, there is no other evidence that Herren’s testimony was a substantial or motivating factor in the decision to discharge him. It seems unlikely that Respondent would retaliate against Herren for signing an antiunion petition and I conclude that Respondent did not. Based upon my observations of the witnesses, I credit Plant Manager Roth’s testimony. His explanation of the decision to discharge Herren seems highly plausible. Considering Herren’s demonstrated attitude—he maintained that he did not have to follow the check-every-20 rule even after ruining 20 doors— Roth foresaw that Herren would continue to ignore supervision. That, in turn, would lead to more unacceptable product in the future. Section 10(c) of the Act includes the proviso that “[n]o 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.” Crediting Plant Manager Roth’s testimony, I conclude that Herren’s termination was a discharge for cause within the meaning of this proviso. Because the General Counsel has not proven the fourth Wright Line element, the Respondent has no rebuttal obligation. The Government has not made its case. Therefore, I recom- mend that the Board dismiss the allegations relating to Herren’s discharge. 9. Complaint paragraphs 16(e), (f), and (g) Complaint paragraph 16(e) alleges that on about July 12, 2006, Respondent imposed a 2-day suspension on employee Rollie Powell. Complaint paragraph 16(f) alleges that on about July 14, 2006, Respondent reassigned Powell to take off duties on the frame department paint line. Complaint para- graph 16(g) alleges that on about July 14, 2006, Respondent cut Powell’s rate of pay. Respondent admits all of these allegations, but denies that it took those actions “because of employees’ union activities and concerted protected activities and because employees filed charges and gave testimony pursuant to the National Labor Relations Act,” as alleged in complaint paragraph 18. Re- spondent also denies that its actions violated Section 8(a)(1), (3), and (4) of the Act, as alleged in complaint paragraphs 27 and 28. On July 12, 2006, Respondent suspended Powell for 2 days giving, as the stated reason for the suspension, that Powell had made 130 bad parts. For the same stated reason, it transferred Powell to a lesser-paying job on the frame department paint line. The General Counsel argues, in effect, that Respondent fo- cused its attention on Powell because of his protected activities, and subjected him to more scrutiny than other employees. The General Counsel further asserts that Respondent would not have imposed a 2-day suspension but for the existence of the October 2005 discipline, which was unlawful. In early July 2006, Powell was a production employee mak- ing door frames. The credited evidence establishes that on July 7, 2006, Powell produced 130 frames which significantly de- parted from the specifications. After examining the faulty frames, management concluded that they might be repaired by welding. With the customer’s permission, Respondent had the frames welded and shipped to the customer. As Respondent’s Answer admits, management then suspended Powell for 2 days and reassigned him to a lower-paying job. The General Counsel’s argument goes into considerable de- tail concerning exactly how the frames failed to meet Respond- ent’s specifications, but I reject any suggestion that the defects were minor, tolerable, or no different from work product which had been acceptable in the past. The credited evidence estab- lishes that the defects were serious. In reaching this conclusion, I specifically do not credit the testimony of James Thompson, an employee in Respondent’s warehouse. Thompson admitted that his duties involve deter- mining whether products are properly labeled, inventoried, and stored and that quality control was not his job. However, Thompson’s testimony pertained to whether the 130 frames complied with specifications, which is a quality control issue. Although Thompson testified that he measured all 130 frames, I am skeptical. Thompson testified that the measure- ments took “maybe five, ten minutes.” Completing the meas- urements in only 10 minutes would require Thompson to have measured 13 frames a minute or 1 frame every 4.6 seconds. That pace sounds rather rapid, particularly for an employee whose regular job duties do not involve quality control. Thompson also testified that the frames were bound on a pallet and that he did the measurements without unloading the pallet or breaking the packaging apart. Additionally, to determine whether the frames met specifica- tions required the measurement of miters, but Thompson testi- fied that he usually did not make measurements of miters. Thompson’s knowledge of the specified tolerances appeared to be limited. On cross-examination, he testified, in part, as fol- lows: 0 Q. Do you know what the tolerances are for a throat opening on an 800 series frame? A. Throat opening, no. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624 Q. Have you ever seen the Steel Door Institutes pub- lished technical data series manufacturing tolerance stand- ard for steel doors and frames? A. I’m not aware of it, no. Considering that Thompson’s job duties did not include quality control, that he had limited knowledge of the technical standards, and that he claimed to have measured 130 frames in 5 or 10 minutes, I conclude that his testimony is not reliable and do not credit it. Additionally, the credited evidence does not establish that Respondent subjected Powell to greater scrutiny than other production employees or imposed upon him any conditions which would cause him to make a mistake. The General Coun- sel argues that Plant Manager Roth instructed Powell that his production “needed both to be of sufficient quality and run quickly” and that this instruction put Powell in a no-win situa- tion: Powell either had to sacrifice quality to meet the produc- tion standard or else attend to quality and fail to meet the stand- ard. The record establishes that Plant Manager Roth did, in fact, talk to Powell about increasing his production. Based on my observations of the witnesses, I have concluded that Roth’s testimony is more reliable, and resolve any conflicts by credit- ing Roth. Accordingly, I find that Roth was concerned about Powell’s production level and believed it would improve if Powell spent more time at his machine. Roth told Powell that he should “stay on the job” rather than leave his machine. Roth also said that he didn’t want Powell to work any faster; he wanted Powell to work “smarter, not harder.” The credited evidence fails to establish that Respondent im- posed on Powell any production standard more onerous than that placed on other employees. Roth’s instruction that Powell work “smarter, not harder,” simply reflected Roth’s believe that if Powell stayed at his machine and devoted his attention to the task, he would increase his production rate without diminishing the quality. Credited evidence also does not establish that Respondent subjected Powell to any closer scrutiny. Clearly, Respondent was concerned about increasing production. Indeed, it was so focused on production that it brought Roth out of retirement to replace the existing plant manager. Although this change did result in a close examination of the production employees’ work, the record does not indicate that this scrutiny fell dispro- portionately on Powell. In sum, I conclude that on July 7, 2006, Powell made 130 de- fective frames. Management reasonably concluded that Powell could not have been following the check-every-20 rule because, if he had been following that rule, he would have detected the problem long before the number of bad frames reached 130. Further, the record establishes that Powell had clear notice of this rule. On April 19, 2004, he had received a warning for “defective and improper work.” This warning specifically stat- ed: “Check every 15 to 20 from now on and you will not have as many bad parts.” Analyzing the facts under the Wright Line framework, I con- clude that the General Counsel has proven the first three re- quirements. Powell had engaged in extensive protected activi- ty, including serving on the Union’s bargaining committee, filing charges with the Board, and meeting with the Board agent. For the reasons discussed above, I conclude that Re- spondent clearly knew about these activities. Additionally, there is no doubt that a 2-day suspension constitutes an adverse employment action. The Government also has proven the required link between the protected activities and the adverse employment action. As discussed above in connection with complaint paragraphs 16(b) and (c), in October 2005, Respondent had disciplined Powell in retaliation for his protected activities and had resorted to a pre- text in doing so. Powell’s protected activities had included filing a charge with the Board and meeting with a Board agent, and retaliation for such activity indicates hostility to the Act and its purposes. Respondent also committed certain other unfair labor prac- tices, discussed above. Accordingly, I conclude that animus towards union and other protected activity constituted a sub- stantial and motivating factor in the decision to suspend Powell for 2 days. The burden therefore shifts to Respondent to prove that it would have taken the same action in any event, even if Powell had not engaged in protected activities. The record establishes that Respondent had disciplined other employees for making defective parts. On July 19, 2002, it discharged employee Jeff Kimbrough for that reason, the dis- charge notice explaining that “due to past history (3 additional write ups) we are terminating your employment with Mesker Door.” Respondent’s evidence establishes that it would have taken some disciplinary action against Powell even if the absence of protected activity. However, Respondent has not proven, by a preponderance of the evidence, that it would have suspended him for 2 days and transferred him to a lower paying job. To the contrary, Respondent’s own evidence indicates the oppo- site. Michael Torres, who was then customer relations manager, attended the meeting in which Roth informed Powell of the 2- day suspension and his transfer to the lower-paying job. Torres’ notes of that meeting include the following: George [Roth] told Rollie [Powell] that the reason he was moved to the paint line was for running bad parts. Rollie asked if the parts were scrapped, because James Smith had told him that they were going to be scrapped. George told Rollie that the customer, Wheeler Hard- ware had been contacted and because they were going to weld the frame they had agreed to work with them. Rollie then said so you are telling me that I was sus- pended for running parts that you are going to ship to a customer. George said no, I’m telling you that you were sus- pended for running unacceptable parts. You have had several write-ups in the past and your continued failure to run acceptable parts resulted in your suspension. . . . . Rollie asked why he was suspended for 2-days. George said because he already had a suspension for 1- day. MESKER DOOR, INC. 625 Based on Torres’ notes, I conclude that Respondent’s unlaw- ful suspension of Powell in October 2005 resulted in Respond- ent’s July 2006 decision to suspend Powell for 2 days, rather than for a lesser period. Therefore, I further conclude that Re- spondent has not carried its rebuttal burden. In sum, I recommend that the Board find that Respondent’s 2-day suspension of Powell, and the related transfer of Powell to a lower-paying job, violated Section 8(a)(1), (3), and (4) of the Act. B. Withdrawal of Recognition Respondent has admitted that, during the period March 22, 2005, until May 8, 2006, the Union was the exclusive repre- sentative, by virtue of Section 9(a) of the Act, of the appropri- ate bargaining unit described above under “Admitted Allega- tions.” It also admits that on May 8, 2006, it withdrew recogni- tion of the Union and since then has refused to recognize and bargain with the Union, as alleged in complaint paragraph 20. However, Respondent asserts that it lawfully withdrew recogni- tion because the Union no longer enjoyed the support of a ma- jority of bargaining unit employees. Alan Frazier, an employee in Respondent’s seamless de- partment, prepared a petition stating, “We, the undersigned, no longer wish to be represented by the United Steelworkers Un- ion.” Frazier signed it on April 27, 2006, and then began ask- ing other employees to sign it. By May 8, 2006, when Frazier presented the petition to Plant Manager Roth, it had been signed by either 34 or 35 employees. Although Respondent counts 35 signatures, the General Counsel questions whether one of those signatures should be counted. At the time the plant manager received the petition, the bargaining unit consisted of 65 employees. Therefore, even assuming that only 34 of the signatures are counted, more than one-half of the bargaining unit had expressed an intention not to be represented by the Union. Based on the petition, Re- spondent withdrew recognition. The Government has not asserted that Frazier was Respond- ent’s supervisor and the record does not establish such status. Additionally, there is no evidence that Frazier was related to any member of management and he credibly testified that he was not. The record also does not establish that management sponsored or encouraged Frazier to circulate the petition or assisted him in that effort. The General Counsel, however, argues that Respondent law- fully could not withdraw recognition because it had committed unfair labor practices which were unremedied, and which caused the Union’s loss of support. In particular, the Govern- ment contends that unlawful statements in Plant Manager Roth’s May 4, 2006 speech to employees caused them to aban- don support for the Union. The Board has held that evidence in support of a withdrawal of recognition “must be raised in a context free of unfair labor practices of the sort likely, under all the circumstances, to affect the union’s status, cause employee disaffection, or improperly affect the bargaining relationship itself.” Lee Lumber & Build- ing Material Corp., 322 NLRB 175, 177 (1996). In cases in- volving unfair labor practices other than a general refusal to recognize and bargain, there must be specific proof of a causal relationship between the unfair labor practice and the ensuing events indicating a loss of support. Lee Lumber, above; LTD Ceramics, Inc., 341 NLRB 86, 88 (2004). To determine whether a causal relationship exists between the unfair labor practices and the employee disaffection, the Board considers four factors: (1) The length of time between the unfair labor practice and the withdrawal of recognition; (2) the nature of the violation, including the possibility of a detri- mental or lasting effect on employees; (3) the tendency to cause employee disaffection; and (4) the effect of the unlawful con- duct on employees’ morale, organizational activities, and mem- bership in the union. Master Slack Corp., 271 NLRB 78, 84 (1984). In the present case, I will not, of course, consider the unfair labor practice which occurred after the withdrawal of recogni- tion. Respondent’s suspension of Rollie Powell for 2 days in July 2006 could not have affected employee support for the Union before Respondent withdrew recognition 2 months earli- er. However, the following unfair labor practices, discussed above, will be considered: 1. Manager Torres’ March 9, 2005 statements to Janice Medlock that “that going around talking to people about FMLA, vacations, etc. could jeopardize her job” that if he heard again that she was keeping records on employ- ees she would be disciplined. 2. The statements of Respondent’s chief negotiator, William Kaspers, at the September and October 2005 bar- gaining sessions, that employees would not receive a wage increase and that the negotiations would not be concluded because of the unfair labor practice charges. 3. Respondent’s October 13, 2005 suspension of Rol- lie Powell. 4. Plant Manager Roth’s May 4, 2006 statement “[A]nyone who’s so unhappy here that you think you need to put this Company out of business needs to move on, find another job, and leave the rest of us the hell alone.” Plant Manager Torres’ March 9, 2005 statements to Janice Medlock would appear to have little effect on employee senti- ment more than a year later. Besides the amount of time which elapsed, only one employee heard what Torres said. Therefore, it would appear unlikely to have a detrimental or lasting effect on employees. Additionally, the statement did not directly concern the Union, making it unlikely to cause employee disaf- fection. Similarly, it had little potential to affect employees’ morale, organizational activities or union membership. Respondent’s statements at the bargaining table in Septem- ber and October 2005 similarly were remote in time from the withdrawal of recognition. These statements focused on the filing of charges rather than on the Union itself. Therefore, I conclude that they would be unlikely to have a detrimental or lasting effect on employees’ support for the Union. Similarly, the statements would be unlikely to cause employee disaffec- tion with the Union, and would have minimal effect on em- ployees’ morale, organizational activities, and union member- ship. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626 Respondent’s October 13, 2005 suspension of Powell also occurred half a year before the withdrawal of recognition. Alt- hough a serious violation, it would be unlikely to have a lasting detrimental effect. Likewise, the suspension would be unlikely to cause employee disaffection or have a significant effect on employees’ morale, organizational activities and union mem- bership. On the other hand, Plant Manager Roth’s May 4, 2005 speech came at a pivotal time in Frazier’s efforts to obtain sig- natures on his petition. Indeed, the General Counsel notes that Frazier increased his efforts to obtain signatures after the speech. Accordingly, the first Master Slack factor, the length of time between the unfair labor practice and the withdrawal of recognition, weighs in favor of finding a causal relationship. However, the nature of the violation does not. As discussed above, Roth’s expressions of opinion about the Union, or more exactly, some members of the Union’s negotiating committee, enjoy the protection of 8(c) of the Act and are not unfair labor practices. Therefore, I do not consider them in this analysis. Here, I focus on Roth’s “find another job” remark. As to the second Master Slack factor, Roth’s May 4, 2006 remarks would not appear to have a significant detrimental effect on support for the Union. As noted above, Roth directed the force of his criticism at certain unnamed employees who had supported the Union, and not at the Union itself. Moreover, I concluded that his “find another job” remark vi- olated the Act because, in the context of Roth’s entire speech, it referred to employees who had filed unfair labor practice charges. Employees reasonably would understand Roth to be saying that employees should choose between filing charges and working for Respondent, but that is different from the mes- sage that employees should choose between supporting the Union and working for Respondent. Although Roth’s remark manifested some hostility towards those who filed unfair labor practice charges, Roth did not express that kind of hostility towards the Union. Roth’s statement might arouse sentiment against the employ- ees whom Roth criticized, but these individuals already had resigned from the Union’s negotiating committee. Hostility towards these employees would not automatically translate into hostility towards the Union. Likewise, the implication inherent in Roth’s violative state- ment, that certain employees were trying to put the Respondent out of business by filing charges, would have little effect on employees’ morale, organizational activities, or union member- ship. The Union certainly is one of the Charging Parties in the present proceeding, but in the context of Roth’s entire speech, it appears clear that he was referring to employees who file charges, rather than to the Union. In sum, following the Master Slack analytical framework, I do not find in the record specific proof of a causal relationship between the unfair labor practices and the employee disaffec- tion. Therefore, I conclude that the existence of these unreme- died unfair labor practices did not preclude Respondent from lawfully withdrawing recognition. See Champion Home Build- ers Co., 350 NLRB 788, 791–792 (2007). Accordingly, I recommend that the Board dismiss the com- plaint allegations that Respondent violated Section 8(a)(5) and (1) by withdrawing recognition from the Union. C. Unilateral Change Allegations Complaint paragraph 21 alleges that on or about May 15, 2006, the Respondent implemented certain changes to the wage rates of bargaining unit employees. Respondent’s answer ad- mits these changes, although it objects that the allegations are irrelevant because Respondent lawfully withdrew recognition from the Union. Complaint paragraph 22 alleges that on or about June 5, 2006, the Respondent implemented certain changes in its points and attendance system applicable to bargaining unit employees, such changes pertaining to the method and rate by which em- ployees “earn back” attendance points assessed to them, the number of allowable points, and the cap on the number of points that may be “earned back” under the system. Respond- ent’s answer again raises a relevancy objection. It further states that, subject to the objection, Respondent “admits that on or about June 5, 2006, the Respondent implemented certain changes to the attendance point system applicable to its produc- tion, maintenance and warehouse employees pertaining to the rate by which employees ‘earn back’ points ass[ess]ed to them, as well as the cap on the number of points that may be ‘earned back’ under the system. While the Respondent further admits that it gave every employee 2-1/2 points on or about June 5, 2006, the Respondent denies that any change was implemented pertaining to the method by which employees ‘earn back’ points or the number of allowable points, as alleged in para- graph 22 . . . the Respondent, therefore, denies said allegations and any remaining allegations in paragraph 22.” Complaint paragraph 23 alleges that in or about July 2006, the Respondent implemented a change to the rules pursuant to which it calculates and determines whether to pay incentive bonuses to bargaining unit employees. Respondent’s answer states: “Subject to the Respondent’s irrelevancy objection . . . the Respondent admits that around August, 2006, the Respond- ent changed its incentive bonus system so that eligibility for a bonus now depends upon productivity and profitability. The Respondent denies all of the remaining allegations set forth in paragraph 23.” Complaint paragraph 24 alleges that the subjects set forth in complaint paragraphs 21, 22, and 23 are mandatory subjects of bargaining. Respondent denies this allegation. Complaint paragraph 25 alleges that Respondent unilaterally engaged in these acts without prior notice to the Union and without having afforded the Union an opportunity to negotiate and bargain as the exclusive representative of Respondent’s employees with respect to such acts and conduct and the effects of such acts and conduct. Again, Respondent’s answer objects that the allegation is irrelevant because Respondent lawfully withdrew recognition from the Union on May 8, 2006. How- ever, Respondent’s answer denies the allegation “since prior notice to the Union and an opportunity to negotiate and bargain as the exclusive representative of the Respondent’s employees was afforded to the Union between March 22, 2005 and May 8, 2006, with respect to changes in wage rates, the attendance MESKER DOOR, INC. 627 point system, and modification of the incentive bonus system to a bonus system based upon productivity and profitability.” Because of my conclusion, discussed above, that Respondent lawfully withdrew recognition from the Union on May 8, 2006, I conclude that it had no duty to bargain when it made the changes described in complaint paragraphs 21, 22, and 23. Therefore, I recommend that the Board dismiss these unilateral change allegations. CONCLUSIONS OF LAW 1. Respondent, Mesker Door, Inc., is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. The Union, United Steelworkers of America, AFL–CIO– CLC, is a labor organization within the meaning of Section 2(5) of the Act. 3. On about March 9, 2005, Respondent violated Section 8(a)(1) of the Act by informing an employee that she would jeopardize her employment if she spoke with other employees about certain terms and conditions of employment, including vacations and Family Medical Leave Act leave, and by inform- ing her that she would be subject to disciplinary action if she kept records concerning the vacation and leave taken by other employees. 4. In September and October 2005, Respondent violated Section 8(a)(1) of the Act by telling employees that employees would not receive a pay increase because unfair labor practice charges had been filed against Respondent, and that negotia- tions with the Union would not progress to completion so long as the charges were pending. 5. On May 4, 2006, Respondent violated Section 8(a)(1) of the Act by telling employees that employees who were so un- happy that they felt they needed to put the Respondent out of business should find other employment. 6. On October 13, 2005, Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending employee Rollie Powell because of his union activity and because he filed charges with the Board and met with a Board investigator in connection with those charges. 7. On about July 12, 2006, Respondent violated Section 8(a)(1), (3), and (4) of the Act by suspending employee Rollie Powell and transferring him to a lower-paying job because it predicated the decision to take this action partly on its earlier unlawful suspension of Powell described in paragraph 6, above. 8. Respondent did not violate the Act in any other manner alleged in the complaint. REMEDY To remedy the unfair labor practices described above, Re- spondent must rescind its unlawful suspensions of its employee Rollie Powell and its transfer of Powell to a lower-paying job, expunge all references to these disciplinary actions from his personnel file and other records, and make him whole, with interest, for the losses he suffered because of these actions. Respondent must also post at its facility, in the manner de- scribed below, the notice to employees attached hereto as Ap- pendix A. [Recommended Order omitted from publication.]