Aero Detroit, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1996

321 N.L.R.B. 1101 (N.L.R.B. 1996)

1101
321 NLRB No. 136
AERO DETROIT, INC.
1 Contrary to the judge, the transcript of the preelection hearing in
Case 7–RC–20200 is part of the record in this case. See Secs.
102.69(g)(1)(i) and 102.68 of the Board’s Rules and Regulations.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 Although the judge correctly found in sec. I of her decision that
the Respondent has engaged in commerce within the meaning of
Sec. 2(2), (6), and (7) of the Act, and that the Union is a labor orga-
nization within the meaning of Sec. 2(5) of the Act, she inadvert-
ently stated in her formal Conclusions of Law 1 and 2, respectively,
that the Respondent is an employer engaged in commerce within the
meaning of, among others, Sec. 2(5) of the Act, and that the Union
is a labor organization within the meaning of Sec. 2(3) of the Act.
We do not rely on the judge’s characterization of the 8(a)(1) viola-
tions found in this case as involving threats of plant closure to
‘‘groups of employees, not only by supervisors but by the highest
levels of management.’’ While the judge found that supervisors
made such threats to groups of employees, only one such threat by
a high-level official, Plant Manager Hendrickson, was established,
and that threat was made to a single employee.
In concluding that the Respondent violated Sec. 8(a)(1) by
Hendrickson’s summoning employee Mansfield to his office and
asking him, inter alia, why he felt a third party was necessary, the
judge erroneously stated that Hendrickson had acknowledged that
summoning an employee to his office was a ‘‘singular’’ event. In
fact, Hendrickson did not testify at the hearing in this case. How-
ever, Mansfield testified without contradiction that it was the first
time he had ever been summoned to Hendrickson’s office. More-
over, the coercive impact of this encounter was heightened by the
fact that it took place in the office of Hendrickson, one of the high-
est ranking plant officials. Accordingly, we find that Hendrickson’s
question was coercive under all the circumstances.
In adopting the judge’s conclusion that the Respondent coercively
interrogated employees about their union sympathies and activities,
Chairman Gould and Member Browning note that the interrogations
were accompanied by threats or promises of benefits. Accordingly,
they find it unnecessary to rely on Rossmore House, 269 NLRB
1176 (1984), enfd. sub nom. Hotel & Restaurant Employees Local
11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985), and Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985). See Service Employees Local 434-
B, 316 NLRB 1059 fn. 1 (1995).
4 The General Counsel has excepted to the judge’s failure to re-
solve the outstanding representation issues presented in this consoli-
dated case. We find merit to these exceptions. Thus, the tally of bal-
lots from an election by secret ballot held among certain of the Re-
spondent’s employees on January 6, 1994, shows 79 votes for and
75 against the Union, with 14 challenged ballots, a number sufficient
to affect the results. The parties subsequently stipulated that the chal-
lenges to the ballots cast by Kenneth Biggs, Kurt Horecki, Dawn
Zabik, and Scott Williams should be overruled and the ballots
opened and counted, and that the challenges to the ballots of Chris
Emery, Thomas Wood, and Frederick Coffey should be sustained.
The Respondent and the Union also stipulated that, in light of
timely objections to the conduct of the election filed by the Union,
the election should be set aside in the event that it does not result
in a certification of representative.
Remaining for disposition are the challenges to the ballots cast by
alleged discriminatee Gary Huddleston and by six employees who
were laid off on December 17, 1993, also alleged to be
discriminatees.
In light of the stipulations and our resolution below of the unfair
labor practice allegations concerning the alleged discriminatees, we
shall sever and remand the representation case to the Regional Di-
rector for further proceedings consistent with this Decision and
Order.
5 E.I. du Pont & Co., 311 NLRB 893, 894–895 (1993) (there is
‘‘dealing’’ between a committee and an employer if, inter alia, man-
agement members of the committee have the power to reject a com-
mittee proposal, regardless of whether the management members of
the committee exercise that power inside or outside of the committee
structure).
Aero Detroit, Inc. and International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL–CIO.
Cases 7–CA–35824, 7–CA–35513, and 7–RC–
20200
August 27, 1996
DECISION, ORDER, AND DIRECTION
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On October 17, 1995, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel and the Respondent filed exceptions and sup-
porting briefs; the General Counsel, the Respondent,
and the Charging Party filed answering briefs; and the
Respondent filed a 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 and briefs and has de-
cided to affirm the judge’s rulings,1 findings,2 and con-
clusions3 as modified and to adopt the recommended
Order as modified and set forth in full below.4
1. We affirm the judge’s finding in the final para-
graph of section III,B of her decision that the 13-mem-
ber Continuous Improvement Team (CIT) was a labor
organization within the meaning of Section 2(5) of the
Act. In so finding, and particularly in finding that the
CIT was ‘‘dealing with’’ the Respondent within the
meaning of Section 2(5), the judge relied in part on the
fact, as found in sections III, B and C of her decision,
that Research and Development Manager Moore, as a
cochairman of the CIT, on some occasions effectively
exercised veto power over CIT proposals within the
CIT by disposing of some CIT proposals simply by
failing to act on them. In affirming the judge’s finding
that the CIT was ‘‘dealing with’’ the Respondent, we
also rely on the fact, as found in section II,C of the
judge’s decision, that proposals that were approved by
the CIT for consideration by management were then
forwarded to a separate management team (which in-
cluded Moore and CIT Cochairman/Plant Manager
Hendrickson), which in turn would make the final de-
cision on what action the Respondent would take in re-
sponse to the CIT proposals forwarded to it for consid-
eration.5
1102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 See Webcor Packaging, 319 NLRB 1203, 1204 fn. 6 (1995);
Electromation, Inc., 309 NLRB 990, 994 fn. 20 (1992), enfd. 35
F.3d 1148 (7th Cir. 1994).
Chairman Gould agrees with his colleagues that the CIT was a
labor organization dominated by the Respondent in violation of Sec.
8(a)(2) and (1) of the Act. He notes that the control exercised by
the Respondent over the CIT is such that the freedom of choice and
independence of action open to employees is too strictly confined
within the parameters of the Respondent’s making for the CIT to be
a genuine expression of democracy in the workplace. See Webcor
Packaging, supra at 1205–1206 fn. 13; Keeler Brass Co., 317 NLRB
1110 (1995) (Chairman Gould’s concurrence).
7 As set forth above, we have adopted the judge’s finding that
these threats violated Sec. 8(a)(1).
Unless otherwise noted, all dates hereafter are in 1993.
8 We do not rely on the judge’s finding that Supervisor Davitt ac-
knowledged that Huddleston had previously submitted a handwritten
note requesting time off, as Davitt testified that he ‘‘did not believe’’
that Huddleston had done so.
9 We do not, however, agree with the judge’s finding, in the sec-
ond paragraph of sec. III,D of her decision, that the Respondent’s
knowledge of Huddleston’s support for the Union is demonstrated in
part merely by Huddleston’s signing of a union authorization card,
without more.
Also in affirming the judge’s finding in section III,B
of her decision that the CIT was a labor organization
within the meaning of Section 2(5) of the Act, we
agree with her finding that the CIT performed a rep-
resentational function. Accordingly, it is unnecessary
to the disposition of this case to determine whether an
employee group could be found to constitute a labor
organization even absent a finding that it acted as a
representative of other employees.6
2. The judge found that the Respondent violated
Section 8(a)(3) and (1) by terminating employee Hud-
dleston on November 17, 1993. We adopt the judge’s
finding for the following reasons only.
Huddleston was hired by the Respondent in Decem-
ber 1992. As more fully set forth in the judge’s deci-
sion, at the time of his hire and repeatedly thereafter
Huddleston stated to his supervisors that he wanted to
take time off in November 1993 to participate in an
annual family reunion and deer hunting trip. On each
of these occasions, he was assured that there was no
problem with his request. Huddleston also was an open
supporter of the Union and was the target of three sep-
arate threats of plant closure and job loss in October
and November 1993.7 In the last of these incidents,
which took place on November 1, Huddleston asked
Davitt, a former unit employee and union supporter
who had just been promoted to supervisor, why Davitt
no longer wore a UAW shirt and hat. Davitt replied
that he no longer believed that union organizing was
a good idea as it would result in the Respondent’s
closing the plant.
On or about November 1, Huddleston told his then-
supervisor, Davitt, that he would be taking time off
later that month. Davitt responded that there would be
no problem but directed Huddleston to fill out a writ-
ten request for leave. Huddleston complied and submit-
ted a formal request on the Respondent’s official form
later on November 1, requesting time off for Saturday,
November 13, Monday, November 15, and Tuesday,
November 16.8
It is undisputed that the Respondent did not notify
Huddleston of the disposition of his leave request until
Thursday, November 11, when Davitt advised Huddle-
ston that his request had been denied. Huddleston told
Davitt that he intended to take the time off anyway,
and Davitt warned him that if he did so, he would be
treated as a voluntary quit. Huddleston worked his nor-
mal schedule on November 12, and told his coworkers
he would be back on the following Wednesday. When
he returned to work on November 17, however, Davitt
told him that he had been terminated pursuant to the
Respondent’s policy treating employees as having vol-
untarily quit if they are absent for 3 days without no-
tice to the Respondent.
We agree with the judge that the General Counsel
has established a prima facie case that Huddleston’s
union activities were a motivating factor in his dis-
charge, based on the abundant evidence of antiunion
animus on the part of the Respondent, Huddleston’s
open support of the Union and the Respondent’s
knowledge thereof,9 the unlawful threats of plant clo-
sure directed at Huddleston by Davitt, and the timing
of the discharge and denial of leave relative, in par-
ticular, to Huddleston’s November 1 encounter with
Davitt. Accordingly, the burden shifts to the Respond-
ent to establish that it would have terminated Huddle-
ston even in the absence of his union activities. Wright
Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). For the
reasons that follow, we find that the Respondent has
not sustained that burden.
The Respondent asserts that Huddleston was termi-
nated pursuant to its rule calling for termination of em-
ployees who fail to report for work or call in for 3
consecutive days. Indeed, the Respondent states on
brief that ‘‘all he [Huddleston] needed to do to protect
his job was to phone the Company’’ during his ab-
sence and advise the Respondent that he would not be
at work during that period. In light of the
uncontradicted evidence that Huddleston told the Re-
spondent prior to his departure that he would be away
on the dates in question, however, we find
unpersuasive the Respondent’s claim that his failure to
reaffirm his absence on those dates was the basis for
his termination.
Thus, there is no evidence that the Respondent had
ever previously applied this rule to an employee who,
like Huddleston, had announced his intention to be ab-
sent in advance. To the contrary, with one exception
it appears that all other employees previously termi-
nated under this policy had abandoned their jobs, inas-
1103AERO DETROIT, INC.
10 The Respondent contends that Huddleston’s’ termination was
justified by his prior record of absenteeism. We find no merit to this
contention. Thus, the Respondent’s stated reason for terminating
Huddleston was his absence for 3 days without calling in, not for
accumulated absences. Indeed, under the Respondent’s system of
progressive discipline a 3-day layoff was called for as discipline for
an absence from November 13–16. The Respondent offers no expla-
nation for its failure to apply its openly stated absenteeism policy
in Huddleston’s case.
11 The Respondent began production of Viper body panels in Janu-
ary 1993 at another facility in Madison Heights, Michigan. Its initial
complement of employees engaged in this operation was 46.
12 It is undisputed that the Respondent was losing money on its
Viper operations at this price.
13 The Respondent’s president, Ralph Miller, testified that the
scrap rate was 34 percent in October and had been reduced to 22
percent by November, with further reductions expected as additional
planned production changes were implemented.
14 The Regional Director denied the request to delay the election
because the evidence showed that the existing complement was rep-
resentative of the complement that the Respondent projected after its
reduction in employees.
15 According to Miller’s testimony at the preelection hearing, 20–
25 employees had voluntarily quit in October.
16 There is no allegation that the selection of employees for layoff
was discriminatory, and the judge specifically found that the selec-
tions were based on objective standards and that union sympathies
were not an issue in the selection process. There are no exceptions
to these findings.
On the other hand, the judge relied on Miller’s preelection speech
to employees in January 1994 as evidence of union animus on the
Respondent’s part. There is no allegation that the speech was unlaw-
ful, and the judge found that it did not contain any ‘‘unlawful com-
ments.’’ We do not rely on Miller’s speech as support for any unfair
labor practice alleged or found to have been committed.
Member Browning finds that the judge properly referred to Mil-
ler’s antiunion speech essentially in rejecting the Respondent’s claim
that it was demonstrably not biased against the Union because it had
initially favored having the work in question performed at another
location by a unit of employees already represented by the Charging
Party.
much as they made no subsequent effort to return to
work. In the one exception, the employee was rein-
stated after requesting his job back. The Respondent
offers no explanation for its disparate treatment of
Huddleston, who also asked to return to work.10 The
Respondent similarly offers no explanation for its fail-
ure to respond to Huddleston’s November 1 request for
leave until November 11, 2 days prior to his planned
departure for the family reunion/hunting trip.
Under all the foregoing circumstances, we find that
the Respondent’s termination of Huddleston violated
Section 8(a)(3) and (1).
3. Contrary to the judge, we find that the General
Counsel has not established that the Respondent’s lay-
off of 23 employees on December 17, 1993, violated
the Act. Our reasons follow.
The credited or undisputed evidence shows that the
Respondent commenced operations at its 29333 Ste-
phenson Highway facility in June 1993 with a com-
plement of 116 employees engaged in the fabrication
of body panels for the Dodge Viper.11 The Respondent
added employees to its work force throughout the sum-
mer and fall with a peak work force of 207 in October.
The body panels were produced using a process called
resin transfer molding (RTM), which the Respondent
had previously used only for production of prototype
parts in very limited quantities; RTM was thus untest-
ed by the Respondent for manufacturing a production
model automobile.
The Respondent’s successful bid to Chrysler for the
work, prepared and submitted in April 1991, specified
a total hourly work force of 71 employees when full
production was reached. These employees were ex-
pected to produce 15 sets of panels (sufficient for 15
cars) per day at a cost of $1,951.43 per set. However,
problems with the RTM process resulted in a high ini-
tial scrap rate, which resulted in the Respondent hav-
ing to rework a large proportion of the parts by hand
to bring them up to specifications. As a consequence,
the Respondent hired many more employees than its
bid had contemplated and its cost per unit mush-
roomed to $6717.12 Chrysler demanded that the unit
cost of the parts be reduced in line with the original
bid and threatened to terminate the contract if this was
not accomplished.
In response to this situation, the Respondent devel-
oped and implemented a plan to reduce its scrap rate
so that the same number of parts could be produced
with fewer employees. The plan was presented to
Chrysler in the spring of 1993 and was implemented
in the months that followed. This plan included, in par-
ticular, changes in the production process that were ex-
pected to—and did—significantly reduce the initial
scrap rate by the fall of 1993.13
As set forth more fully in the judge’s decision, the
union campaign at the Respondent’s facility began in
earnest in August 1993. An election petition was filed
on October 26. At the preelection hearing, the Re-
spondent contended, inter alia, that the election should
be postponed because it anticipated significant reduc-
tions in its work force in light of the productivity im-
provements described above.14 In this regard, Miller
testified that because there had been a high level of at-
trition prior to that time, ‘‘we are confident that there
will be few, if any, layoffs associated with this projec-
tion’’ of a reduced work force based on the high rate
of turnover in its work force.15 Miller also stated that
‘‘we have to stay on that downward trend. Or we’re
not going to have jobs for any of our people.’’ On De-
cember 17 the Respondent laid off 23 employees.
The judge found that the layoffs violated Section
8(a)(3) and (1) because they were effected for the pur-
pose of demonstrating to employees that the Respond-
ent controlled their job security, thereby discouraging
support for the Union.16 Although never explicitly
finding that a prima facie case had been established
1104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 The judge stated that the December layoffs were inconsistent
with its refusal to grant Huddleston the requested time off in No-
vember.
18 The judge found that the Respondent’s failure to establish the
rate of attrition prior to November was a serious flaw in its case and
allowed an inference that the evidence was not adduced because it
did not support the Respondent’s case, and that the Respondent’s
witnesses contradicted each other on the date when attrition ceased
and the decision to lay off employees was made. The judge also
concluded that Miller’s testimony that the Respondent expected attri-
tion to continue in December was suspicious as employees were un-
likely to quit prior to the holidays.
19 For the same reasons, we also find that the Respondent’s des-
ignation of the layoffs as permanent does not establish that they
were unlawful. Ideal Macaroni, supra at 509–510 (‘‘permanent’’ lay-
off lawful, even though Board found that employees in fact had ex-
pectation of recall). No evidence was presented to indicate that the
Respondent designated the layoffs as permanent in order to dis-
enfranchise employees, nor was any evidence presented to indicate
that the employees had a reasonable expectation of recall. In deter-
mining this latter question, the Board examines several factors, in-
cluding the employer’s past experience and future plans, the cir-
cumstances surrounding the layoff and what the employees were told
about the likelihood of recall. Apex Paper Box Co., 302 NLRB 67,
68 (1991). Here, the employees were told the layoffs were perma-
nent, and the Respondent had stated (at the preelection hearing) that
it planned significant reductions in the work force. Moreover, the
layoffs took place against a background of technological improve-
ments and declining scrap rates, which would reasonably have called
into question the Respondent’s need for its existing employee com-
plement. Under these circumstances, we find that the employees did
not have a reasonable expectation of recall. In this regard, the fact
that seven of the laid-off employees were recalled in June 1994 does
not establish that they or any other employees had a reasonable ex-
pectation of recall, ‘‘because the occurrence of subsequent events
. . . cannot change the expectation of recall that existed during the
critical period.’’ Id.
20 The judge found that the weekly overtime hours were 2155 the
week of the layoff, and 1467, 2230, 1237, 1646, 1846, and 2270 for
the weeks that followed.
under Wright Line, the judge found that the Respond-
ent’s asserted economic justifications for the layoffs
were contradictory and unsupported by objective evi-
dence and that the Respondent had failed to explain
the timing of the layoffs in relation to the union cam-
paign and the election.
In support of these findings, the judge noted initially
that the Respondent had stated to employees in the
summer of 1993 that the ‘‘sky was the limit’’ as far
as hiring and that the future looked ‘‘bright.’’ Simi-
larly, on November 13 the Respondent denied to em-
ployees rumors that the plant would close, stating in-
stead that customers were looking favorably at the Re-
spondent’s products and that it intended to expand its
building. The judge found that the layoffs were incon-
sistent with these statements, and with Miller’s testi-
mony at the representation hearing that reductions in
force could be accomplished by attrition.17 Although
Miller testified at the hearing in the consolidated cases
that the change in plans was necessitated by an unan-
ticipated reduction in attrition, the judge dismissed this
testimony because the 2-week period of time between
the hearing and the decision to effect layoffs was too
short for the Respondent to have drawn ‘‘hard and
fast’’ conclusions about rates of attrition.18 The judge
also found that the Respondent’s continued need for
overtime in December 1993 and January 1994 belied
its claim that it no longer needed the 23 employees.
Contrary to the judge, we are persuaded by the Re-
spondent’s explanations that it would have laid off the
employees in December even in the absence of the em-
ployees’ union activities. Thus, the Respondent has es-
tablished that it never intended to have a work force
of 207 employees, and that it reached that level solely
because of unanticipated problems with its untested
production process. The Respondent has also shown
that it was under severe pressure from Chrysler, its
sole customer, to reduce its unit costs, and that it im-
plemented changes in the production process that re-
duced its scrap rate—and thus its need for employees
to rework the scrap—during the summer and fall of
1993. Miller testified that the layoff was implemented
in December, as the benefits of these changes began
to take effect, in order to reduce the Respondent’s
losses and to demonstrate to Chrysler that the Re-
spondent had the ability to solve its production prob-
lems. In these circumstances, we find that the Re-
spondent has shown that the layoff was a response to
pressures from its customer and for improved produc-
tivity of its work force, and not to union activity at the
plant. Brandt-Airflex Corp., 316 NLRB 315 (1995)
(layoff in response to customer pressure lawful); Ideal
Macaroni Co., 301 NLRB 507, 509 (1991) (layoff a
response to reduced orders and improved productivity),
enf. denied on other grounds 989 F.2d 880 (6th Cir.
1993).19
Contrary to the judge, the Respondent did provide
evidence concerning its turnover rate prior to Novem-
ber. As noted above, Miller testified at the representa-
tion hearing that 20–25 employees had voluntarily quit
in October. Consistent with this testimony, Miller sub-
sequently testified at the hearing in this consolidated
case that in the summer and fall of 1993 the Respond-
ent’s turnover rate was 20–30 percent. These figures
support the Respondent’s position that, had attrition
continued at the historic rate, it could have accom-
plished the needed reductions without resorting to a
layoff.
We disagree with the judge’s finding that the Re-
spondent’s continuing need for overtime after the lay-
offs contradicts its claim that it needed fewer employ-
ees in December. The weekly overtime figures cited by
the judge demonstrate that the Respondent’s need for
overtime actually declined substantially in late Decem-
ber and early January 1994, after the layoffs had taken
place.20 While overtime returned to the prelayoff level
by the end of January, this fact does not undercut the
Respondent’s explanations for the December layoffs.
1105AERO DETROIT, INC.
21 The week following the layoff the Respondent had 178 unit em-
ployees; by the end of January the work force had been further re-
duced to 169.
22 Likewise, we perceive no fatal inconsistency between the Re-
spondent’s statements to employees about its business prospects and
the layoff in December, as the statements in question were either too
vague or too remote in time to create in the minds of employees a
reasonable expectation that no layoffs would occur in December.
We also find no significant contradiction between the testimony of
Miller and Personnel Manager Gubris concerning the timing of the
layoff decision. As the judge noted, Miller testified that attrition
abruptly ceased about a week before the layoffs were implemented.
While Gubris testified that she was asked to oversee the layoff in
mid to late November, she also stated that she was ‘‘guessing’’ as
to the date. In these circumstances, we decline to find that any re-
maining disparity in the dates testified to demonstrates that the Re-
spondent’s explanations were pretextual.
23 A bargaining order issued under these circumstances is, accord-
ingly, to be distinguished from a bargaining order based on unfair
labor practices which are so pervasive and outrageous that their ef-
fects cannot be eliminated by the application of traditional remedies,
with the result that a fair and reliable election cannot be held. NLRB
v. Gissel Packing Co., 395 U.S. at 613–614. Accordingly, a bargain-
ing order remains appropriate notwithstanding our dismissal of the
allegation that the mass layoff in December 1993 was unlawful.
Thus, the return to prelayoff overtime levels at the end
of January 1994 coincided with further reductions in
the Respondent’s work force.21 In these circumstances,
we cannot conclude that the overtime worked at the
end of January demonstrates that the laid-off employ-
ees were needed to maintain production in December.
Further in this regard, any increase in overtime was
balanced by a decrease in regular hours worked and,
accordingly, does not undercut the Respondent’s busi-
ness justification for the layoff. See Hoffman Plastic
Compounds, 306 NLRB 100, 106 (1992). Indeed, that
the Respondent could maintain its desired level of pro-
duction with fewer regular hours worked and roughly
the same amount of overtime supports, rather than de-
tracts from, its business justification for the layoff.
We further disagree with the judge’s finding that the
Respondent’s justifications for the layoff are under-
mined by Miller’s testimony at the preelection hearing
in November that he expected that the anticipated re-
ductions in force would be accomplished by attrition.
In this regard, the judge’s implicit finding that the Re-
spondent should have anticipated that attrition would
cease as the holiday season approached was unduly
speculative, especially in light of the uncontradicted
evidence that the Respondent had previously experi-
enced high turnover at its facility for many months.
Similarly, we think that the judge improperly sub-
stituted her business judgment for the Respondent’s by
faulting its decision to implement the layoff when it
did, instead of waiting a few weeks to see if attrition
would return to normal. In any event, the Respondent’s
failure to accurately anticipate its future attrition levels
alone is insufficient to overcome the substantial
uncontradicted evidence set forth above, supporting the
Respondent’s business justifications.22
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law 1,
2, and 6.
‘‘1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
‘‘2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
‘‘6. The Respondent violated Section 8(a)(1) and (3)
by discharging employee Gary Huddleston on Novem-
ber 17, 1993, because he engaged in union activities.’’
AMENDED REMEDY
We find that a bargaining order remains necessary
to remedy the violations established in this case and to
effectuate the purposes of the Act. The Supreme Court
has held that a bargaining order should issue where
‘‘the possibility of erasing the effects of past [unfair
labor] practices and ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though
present, is slight and that employee sentiment once ex-
pressed through cards would, on balance, be better pro-
tected by a bargaining order.’’ NLRB v. Gissel Packing
Co., 395 U.S. 575, 613–614 (1969).23 It is undisputed
that the Union had valid authorization cards from a
substantial majority of unit employees on October 19.
We find that the Respondent’s many serious unfair
labor practices had, and continue to have, an enduring
impact on the unit that is unlikely to be dissipated by
application of the Board’s traditional remedies.
In this regard, we have adopted the judge’s finding
that the Respondent violated Section 8(a)(2) by estab-
lishing and dominating the Continuous Improvement
Team (CIT), an employer-dominated labor organization
with which the Respondent dealt concerning conditions
of work and other Section 2(2) subjects. The Respond-
ent’s unlawful establishment of the CIT, and its use of
that entity as a vehicle for unlawfully soliciting griev-
ances and promising benefits to employees, in particu-
lar, struck at the very heart of the employees’ organi-
zational efforts. The Respondent openly held out the
CIT to employees as an alternative to the Union, and
trumpeted to employees the benefits which they re-
ceived through the CIT throughout 1993, including
during the preelection period. The impact of these un-
fair labor practices is particularly severe because the
benefits afforded employees endure as a lasting re-
minder of how the employees’ demands were met. Re-
search Federal Credit Union, 310 NLRB 56, 65
(1993), remanded 25 F.3d 1115 (D.C. Cir. 1994)
(table); see also Skyline Distributors, 319 NLRB 270
(1995) (recognizing impact of grant of benefits on em-
1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
24 The Respondent’s contention that a bargaining order is not ap-
propriate because some of the unfair labor practices were committed
prior to the date employees signed authorization cards is without
merit, particularly in light of the many unfair labor practices that
took place after October 19, including the ongoing activity of the
CIT. Massachusetts Coastal Seafoods, 293 NLRB 496, 499–500
(1989). Likewise, the Respondent’s assertions that a bargaining order
is not appropriate due to the passage of time and asserted manage-
ment turnover are without merit. See, e.g., Skyline Distributors,
supra at 270.
25 Although we agree with the judge’s conclusion that a bargaining
order is warranted, we disavow her gratuitous characterization of the
Respondent’s December layoff as ‘‘Scrooge-like.’’
26 We shall modify the judge’s recommended Order and notice in
accordance with our decision in Indian Hills Care Center, 321
NLRB 144 (1996), and to more closely reflect the violations found.
27 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
ployee sentiments). Further, the Respondent subjected
employees to many threats of plant closure during the
union organizing campaign. The Board has consistently
recognized that these ‘‘hallmark’’ violations, which
threaten the very livelihood of unit employees, have a
lasting impact that is also unlikely to be erased by the
passage of time. BI-LO, 303 NLRB 749, 771 (1991),
enfd. 985 F.2d 123 (4th Cir. 1992).24 Additionally, the
Respondent unlawfully terminated employee Huddle-
ston and coercively interrogated an employee. Under
all the circumstances, we find that the coercive atmos-
phere created by the Respondent’s conduct cannot be
dissipated by the Board’s traditional remedies and that
employee sentiment will, on balance, be better re-
flected by the authorization cards than by a second
election.25
ORDER26
The National Labor Relations Board orders that the
Respondent, Aero Detroit, Inc., Madison Heights,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Discharging or otherwise discriminating against
any employee for supporting International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL–CIO, or any
other labor organization.
(b) Coercively interrogating any employee about
union activities or sentiments.
(c) Threatening employees with plant closure or loss
of jobs because they support the Union or any other
labor organization.
(d) Promising to redress employees’ grievances in
order to chill their interest in or support for the Union
or any other labor organization.
(e) Dominating, assisting, or otherwise supporting
the Continuous Improvement Team created in Septem-
ber 1993 at its Madison Heights facility.
(f) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclu-
sive representative of employees in the following ap-
propriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement:
All full-time and regular part-time production and
maintenance employees employed by the Re-
spondent at its Madison Heights facility, including
mold employees, paint employees, tool repair and
maintenance employees, wet sand employees,
quality control employees and shipping and re-
ceiving employees, but excluding office clerical
employees, guards and supervisors as defined in
the Act.
(b) Within 14 days from the date of this Order, offer
Gary Huddleston full reinstatement to his former job
or, if that job no longer exists, to a substantially equiv-
alent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed.
(c) Make Gary Huddleston whole for any loss of
earnings and other benefits suffered as a result of the
discrimination against him, in the manner set forth in
the remedy section of the judge’s decision.
(d) Within 14 days from the date of this Order, re-
move from its files any reference to the unlawful dis-
charge, and within 3 days thereafter notify the em-
ployee in writing that this has been done and that the
discharge will not be used against him in any way.
(e) Immediately disestablish and cease giving assist-
ance or any other support to the Continuous Improve-
ment Team.
(f) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination
and copying, all payroll records, social security pay-
ment records, timecards, personnel records and reports,
and all other records necessary to analyze the amount
of backpay due under the terms of this Order.
(g) Within 14 days after service by the Region, post
at its facility in Madison Heights, Michigan, copies of
the attached notice marked ‘‘Appendix.’’27 Copies of
the notice, on forms provided by the Regional Director
for Region 7, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent and maintained for 60 consecutive days in
conspicuous places including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that the no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of
1107AERO DETROIT, INC.
these proceedings, the Respondent has gone out of
business or closed the facility involved in these pro-
ceedings, the Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current
employees and former employees employed by the Re-
spondent at any time since February 3, 1994.
(h) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a
responsible official on a form provided by the Region
attesting to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the challenges to the
ballots of the following employees be overruled: Ken-
neth Biggs, Kurt Horecki, Dawn Zabik, Scott Wil-
liams, and Gary Huddleston; and that the challenges to
the ballots of Chris Emery, Thomas Wood, Frederick
Coffey, Arthur Butts, Shane Woodward, Kurt Vanhala,
Librado Hererra, Ralph Ruth, and Steven Thornton are
sustained.
IT IS FURTHER ORDERED that Case 7–RC–20200 is
severed from Cases 7–CA–35824 and 7–CA–35513,
and that it is remanded to the Regional Director for
Region 7 for action consistent with the Direction
below.
DIRECTION
IT IS DIRECTED that the Regional Director for Re-
gion 7 shall, within 14 days from the date of this deci-
sion, open and count the ballots of the employees list-
ed above, and that he prepare and serve on the parties
a revised tally.
If the revised tally in this proceeding reveals that the
Petitioner has received a majority of the valid ballots
cast, the Regional Director shall issue a certification of
representative. If, however, the revised tally shows that
the Petitioner has not received a majority of the valid
ballots cast, the Regional Director shall set aside the
election, dismiss the petition, and vacate the proceed-
ings in Case 7–RC–20200.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT discharge or otherwise discriminate
against any of you for supporting International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America (UAW), AFL–CIO, or any
other labor organization.
WE WILL NOT coercively interrogate you about your
union activities or sentiments.
WE WILL NOT threaten you with plant closure or
loss of your jobs because you support the Union, or
any other labor organization.
WE WILL NOT promise to redress grievances in order
to chill your interest in or support for the Union, or
any other labor organization.
WE WILL NOT dominate, assist, or otherwise support
the Continuous Improvement Team created in Septem-
ber 1993 at our Madison Heights facility.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the bargaining unit:
All full-time and regular part-time production and
maintenance employees employed by us at our
Madison Heights facility, including mold employ-
ees, paint employees, tool repair and maintenance
employees, wet sand employees, quality control
employees and shipping and receiving employees,
but excluding office clerical employees, guards
and supervisors as defined in the Act.
WE WILL within 14 days from the date of the
Board’s Order, offer Gary Huddleston immediate and
full reinstatement to his former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to his seniority or any other rights or
privileges previously enjoyed.
WE WILL make Gary Huddleston whole for any loss
of earnings and other benefits resulting from his dis-
charge, less any net interim earnings, plus interest.
WE WILL, within 14 days from the date of the
Board’s Order, remove from our files any reference to
the unlawful termination of Gary Huddleston and WE
WILL, within 3 days thereafter, notify him in writing
that this has been done and that his termination will
not be used against him in any way.
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 Hereinafter referred to as the General Counsel.
2 All events occurred in 1993 unless otherwise noted.
3 Hereinafter referred to as the Union or the UAW.
4 Hereinafter referred to as the Respondent or the Employer.
5 During the instant hearing, the parties resolved the objections to
the election by stipulation and agreed that the election must be set
aside.
6 At the hearing, over the Respondent’s objection, I granted the
General Counsel’s motion to amend the complaint to add two allega-
tions of 8(a)(1) violations. The Respondent denied the new allega-
tions.
7 Documents offered into evidence by the General Counsel will be
cited as G.C. Exh. followed by the relevant exhibit number; while
those offered by the Respondent will be designated as R. Exh. Ref-
erences to the transcript will be referred to as Tr., followed by the
appropriate page number. In the absence of objections, the General
Counsel’s motion to correct the record is granted.
8 Hereinafter abbreviated as Sec., where applicable.
9 The Respondent has 15 plants, 4 of which have collective-bar-
gaining contracts with unions.
10 R. Exh. 11 shows that the monthly increments went from 116
in June to 133 in July, 163 in August, 189 in September, 207 in
October, and a slight drop to 205 by November 10.
WE WILL immediately disestablish and cease giving
assistance or any other support to the Continuous Im-
provement Team.
AERO DETROIT, INC.
Amy Bachelder and Amy J. Roemer, Esqs., for the General
Counsel.1
Paul H. Townsend Jr., Esq., Steven M. Schwartz, Esq., and
Dykema Gossett, of Detroit, Michigan, for the Respondent.
Betsey Engel, Esq., of Detroit, Michigan, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. On charges
filed on February 3 and 4, 1994,2 in Case 7–CA–35513 and
on April 14 in Case 7–CA–35824, by International Union,
United Automobile, Aerospace and Agricultural Implement
Workers of America (UAW), AFL–CIO3 a consolidated
complaint issued on June 2, alleging that the Respondent,
Aero Detroit, Inc.,4 violated Section 8(a)(1), (2), and (3) of
the National Labor Relations Act (the Act). On the same
date, the Regional Director for Region 7 issued an order con-
solidating unfair labor practice cases and representation case
for hearing (Case 7–RC–20200) to resolve the Charging Par-
ty’s objections to an election held on January 6, 1994.5
Specifically, the consolidated complaint alleges that the
Respondent violated (1) Section 8(a)(1) by unlawfully inter-
rogating employees prior to the election about their union
sympathies; threatening them with plant closure if the UAW
won the election, and soliciting grievances through an em-
ployer-sponsored committee (the Continuous Improvement
Team or C.I.T.); (2) Section 8(a)(1) and (2) by dominating,
interfering with, and lending unlawful assistance to the
C.I.T.; and (3) Section 8(a)(1) and (3) by suspending and
then terminating employee Gary Huddleston and permanently
laying off 23 employees because of their support for the
Union. The Respondent filed a timely answer denying all of
the substantive allegations.
This case came to trial before me in Detroit, Michigan, on
September 19–21, at which time parties examined and cross-
examined witnesses, introduced documentary proof, and ar-
gued orally.6 On careful review of the entire record,7 my ob-
servation of the witnesses’ demeanor, consideration of the
parties’ posttrial briefs, and under Section 10(c) of the Act,
I make the following
FINDINGS OF FACT
I. JURISDICTION
At all material times, the Respondent, a corporation with
an office and place of business at 29333 Stephenson High-
way, Madison Heights, Michigan (the Madison Heights facil-
ity), has engaged in the manufacture of automotive body
panels and related parts. During the year ending December
31, 1993, a representative period, the Respondent, in con-
ducting its business described above, received goods valued
in excess of $50,000 at its Madison Heights facility from
points outside Michigan. The complaint alleges, the Re-
spondent admits, and I find that Aero Detroit has engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.8
At all material times, the UAW has been a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
Aero Detroit designs and engineers prototype automobiles.
Prior to 1991, the Respondent created a prototype for the
Chrysler Corporation named the Dodge Viper. Although
manufacturing was not within the scope of its principal oper-
ations, at Chrysler’s request, the Respondent agreed to
produce fiberglass body panels for the Viper.
Initially, the Respondent planned to produce the Viper
panels at its Lincoln Park plant, and proposed accreting new
employees hired for the project to an existing unit there al-
ready represented by the UAW.9 Accordingly, the parties en-
tered into negotiations and reached tentative accord on a re-
vised labor agreement, but the Lincoln Park bargaining unit
employees vetoed the contract. The parties then returned to
the bargaining table, but the unit members again rejected the
revised contract.
As a consequence, the Respondent moved into a new facil-
ity in Madison Heights, a Detroit suburb, and began produc-
tion there in June with 116 employees, an increase of 46
over its January contingent. After the move, Plant Manager
Buck Hendrickson touted the plant’s growth, indicating that
even more space would be needed; that the future looked
‘‘bright’’; and that ‘‘the sky’s the limit as far as hiring peo-
ple.’’ (Tr. 418–419.) In keeping with Hendrickson’s optimis-
tic outlook, the work force continued to expand throughout
most of 1993, reaching a peak of 207 in October.10 As late
as mid-November, management was heralding Aero Detroit’s
bright prospects. Thus, Sarver testified without controversion
that on November 13, the employees in his department were
summoned to a meeting at which Production Manager Jim
Wagner discounted rumors that the plant would be shutting
1109AERO DETROIT, INC.
its doors. To the contrary, he assured the assembled workers
that different companies were looking favorably at the Re-
spondent, that the plant was running at capacity, that new
presses were purchased, and the building would have to be
expanded.
B. The Union Campaign
In January 1993, a handful of employees, including Tom
Mansfield, discussed the utility of forming a union. Although
some authorization cards were signed, the organizing effort
did not attract sufficient support and by March, lay dormant.
In August, Mansfield, with coworker John Sarver, initiated
another union campaign, with aid from UAW International
Representative Baxter Marino. Mansfield and Sarver distrib-
uted literature widely, discussed the UAW with their fellow
employees, encouraged them to attend union meetings, and
openly identified themselves as union adherents by wearing
buttons sporting the UAW logo and caps embellished with
the letters UAW on their brims. These efforts culminated in
a drive to obtain signed authorization cards. By October 19,
the Union had collected 160 signed cards that were submit-
ted to the National Labor Relations Board (NLRB).
C. The C.I.T.
In September, apparently reacting to the union campaign,
Hendrickson called Mansfield to his office to talk to him
about forming a Continuous Improvement Team (C.I.T.), as
a way to address employee concerns and improve conditions
in the workplace without the intervention of a ‘‘third party.’’
When Hendrickson asked why he supported the Union,
Mansfield answered that there was too much favoritism in
the plant. Then, Hendrickson asked if he would be interested
in joining the C.I.T. Mansfield replied that he was willing to
work on anything that promised improved working condi-
tions. Shortly thereafter, Hendrickson appointed him to the
committee.
Following this exchange, Hendrickson issued a memoran-
dum dated September 16, introducing the C.I.T. program to
the work force and explaining that its purpose was to elicit
employees’ suggestions to ‘‘find more productive ways to do
business.’’ (G.C. Exh. 7.) The memo further stated that the
Continuous Improvement Team would evaluate employee
suggestions to determine which ones were appropriate for
adoption. A few days later, Hendrickson and Research and
Development Manager John Moore, self-selected as cochair-
men of the the Continuous Improvement Program, circulated
another memo which announced the names of 11 handpicked
committee members and outlined the following priority con-
cerns the C.I.T. would address: workplace safety, product
quality, productivity, and production costs. Suggestion forms
were distributed to employees which invited proposals ad-
dressing improved working conditions, employee-manage-
ment relations and employee morale would be welcome.
At the C.I.T.’s first meeting on September 27,
Hendrickson gave an overview of how the group would oper-
ate, explaining that the members would discuss the pros and
cons of employee suggestions to determine if they were cost-
saving measures. Subsequently, the members received paid
time off, but no extra compensation to attend the meetings
which were held once a week for approximately an hour in
the Company’s conference room. A suggestion box was
mounted in the facility and forms circulated which indicated
that suggestions would be considered which affected produc-
tivity, quality, lower costs, safety, training, improving work-
ing conditions and morale, and improving employee-manage-
ment relations. The suggestions were collected and read
aloud at each meeting. C.I.T. member Woodward was un-
aware of any limitations being imposed on the topics which
members could consider. After reviewing the suggestions, a
vote would be taken, and if approved by a majority of the
13 members, the proposal would be forwarded to a manage-
ment team which included, among others, Hendrickson and
Moore, who would make the final decision. Minutes of the
meeting were maintained and circulated to the members prior
to the next meeting and a monthly one-page bulletin was dis-
tributed to all employees to keep them abreast of the com-
mittee’s activities.
The minutes of the October 13 meeting set forth the fol-
lowing list of ‘‘qualifying suggestions,’’ presumably referring
to topics which the committee would consider: ‘‘(a)
Maintain/increase productivity and reduce scrap; (b) Quality;
(c) Lower cost; (d) Safety; (e) The promotion of a total orga-
nizational commitment to quality.’’ The record shows that
many of the proposals fell within these guidelines in that
they concerned ways to perform the production work more
effectively and efficiently. Other suggestions dealt with
awarding prizes for good attendance records, hiring part-time
employees to reduce overtime, improving ventilation and pre-
venting dust contamination in a particular department, pur-
chasing uniforms, employer contributions to 401K plans, the
attendance policy, personal time off and sick leave, and in-
stallation of lockers and exercise equipment.
A bulletin to the employees dated December 8 lists a num-
ber of suggestions that were implemented including relocat-
ing telephones to a more quiet location, installation of a
clock in the breakroom, dust collection in the prep area, a
telephone message system, employee coat racks, price lists in
the supply cabinets, and a recycling program. These items
did not fall strictly within the December 8 guidelines but
were related to other C.I.T. objectives such as ‘‘improv[ing]
working conditions and moral as well as . . . employee and
management relations.’’ (G.C. Exh. 18.) The bulletin also en-
couraged employees to continue submitting proposals, stating
that ‘‘All suggestions are welcome and are looked at by the
committee and reviewed every week.’’ At the same time, the
bulletin also contained the message that ‘‘We are currently
directing our efforts in improving quality and productivity in
our facility.’’ (G.C. Exh. 19.)
Process and Product Development Manager Moore main-
tained that the focus of C.I.T. was to work toward a more
cost-effective production process. He described the commit-
tee’s procedure as very informal, ‘‘kind of a brainstorming,
open up talking, discussion-type atmosphere’’ and, contrary
to the testimony of three C.I.T. employee-members, was cer-
tain that no voting took place. The committee eventually lost
momentum and faded out of existence sometime in late Feb-
ruary or March due to employee lack of interest.
D. Alleged Threats and Interrogation
The record is replete with accounts of allegedly unlawful
statements made by the Respondent’s supervisors during the
preelection period. Among them, as noted above, is Plant
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 Kern was fired some months later for making an offensive state-
ment to her supervisor.
Manager Hendrickson’s query to Mansfield as to why he
thought a ‘‘third party’’ was necessary.
Sarver, another principal in-house union organizer, testi-
fied about an incident which he placed in early October
when R & D Manager Moore approached him at his
workstation and asked what he thought ‘‘the Union could do
for us, for the plant.’’ (Tr. 156.) Sarver, who was wearing
a UAW shirt and button marked ‘‘organizer,’’ told Moore he
could not speak with him while he was on the clock, but
suggested that they talk later at a local fast food shop or after
work. When Moore repeated his question, Sarver again de-
clined to answer, pointing out he was on company time, after
which Moore walked away. Moore claimed to have no recol-
lection of such a conversation, but admitted that it would not
be out of character for him to ask such a question.
Sarver related that some 10 minutes later, Paint Supervisor
Dave Doran told him in no uncertain terms, that if he
worked in his department, he would ‘‘rip that shirt off your
back.’’ Sarver protested that Doran could not talk to him in
that manner, which prompted the supervisor to ask ‘‘[W]hat
did the Union promise you?’’ When Sarver again insisted
that he could not talk about such matters on company time,
Doran countered that he was on his break.
Doran acknowledged that Sarver frequently wore union
garb, but he had no recollection of threatening to rip his shirt
off. Moreover, Doran asserted that he was Sarver’s super-
visor at the time and, therefore, would not have suggested
that Sarver not in his department. Sarver subsequently re-
futed Doran’s statement, testifying without dispute that his
supervisor at that time was Greg Carpenter.
Shane Woodward, another employee who openly declared
his union allegiance by wearing a UAW T-shirt and cap, re-
ported that in early or mid-October, while a group of em-
ployees was gathered at a table outside the plant during a
break period, their supervisor, Mike Defever, warned that ‘‘if
the Union came in, they would shut down, we would all lose
our jobs, and . . . be standing on the unemployment line.’’
(Tr. 240–241.) Woodward bluntly told Defever he was tired
of hearing him make such unlawful predictions.
Defever described a similar incident in far more benign
terms. He recalled an occasion when some employees, seated
in the mezzanine area of the facility, asked him his views
about the Union. He testified that he told them about two sit-
uations; one involving a plant where the union’s advent led
to greatly improved conditions; the other, where the plant
had closed and become bankrupt close in time to a union
election.
Woodward also accused Supervisor Doran of telling em-
ployees who had gathered at a bar near the plant in mid-No-
vember that the Respondent had not made any money since
it opened and that ‘‘the Union would shut the Company
down and if we thought things were bad now they were only
going to get worse.’’ (Tr. 243.) Although conceding that he
went to the bar in question on several occasions, Doran said
he did not know Woodward and would not have made such
a statement because it was untrue.
Employee Gary Huddleston also described a few incidents
in which supervisors allegedly made coercive remarks. On
one occasion in early October, while cleaning up at the end
of the day with other employees, Huddleston said he pointed
to the letters, ‘‘UAW’’ spray painted on the wall and face-
tiously asked his supervisor, John Torres, whether he would
vote for the Union. According to Huddleston, Torres an-
swered tersely, ‘‘We vote for the Union, we’ll all lose our
jobs.’’ Torres said he did not recall this incident.
Two other allegations involved Michael Davitt, a former
rank-and-file employee who had signed a union authorization
card prior to his promotion in October to supervisor in the
bond department, succeeding Torres. Huddleston testified
that on one occasion in late October, employees were gath-
ered in the work area talking about the positive aspects of
the Union when Davitt interjected that ‘‘it’s not a good
thing, the Union coming here. They’re going to close the
plant down. We’ll all lose our jobs.’’ (Tr. 299–300.) Huddle-
ston said that he told Davitt he was wrong for he had re-
cently seen a movie popularizing the Dodge Viper. Neverthe-
less, Davitt repeated that the Respondent would close the
plant.
Huddleston described a second encounter on or about No-
vember 1 when he asked Davitt why he no longer wore a
UAW T-shirt and hat, as he had when he was one of the
rank and file. Davitt purportedly answered that he no longer
thought that union representation was a good idea in as much
as ‘‘They’ll shut us down and we’ll all be out of work.’’ (Tr.
301.) Davitt denied talking about the Union to Huddleston,
or anyone else for that matter, after becoming a supervisor.
Former employee, Teresa Kern, testified that just 2 days
before the election, she met with Buck Hendrickson to dis-
cuss her performance evaluation. Rather tactlessly, Kern told
Hendrickson that she was angry it had taken so long to see
him, and that although she originally opposed the Union, she
now thought it was a good idea. She related that
Hendrickson patted her leg and remarked, ‘‘[I]f the union
gets in here none of us will have a job.’’11 (Tr. 179–180.)
I am inclined to credit the employees’ versions of each of
the above incidents for several reasons. First, they provided
descriptive details about their encounters which would have
been difficult to conjure up. Second, if the employees wanted
to fabricate, they easily could have invented many more en-
counters with supervisors, and attributed far worse behavior
to them than they did. Instead, they were quite restrained in
relating the various incidents summarized above. Third, in a
number of instances, the Respondent’s officials either failed
to deny or could not recall the accusations attributed to them
by the Government’s witnesses. Fourth, although the Re-
spondent obtained all affidavits the witnesses provided to the
Government, in no case were these statements, recorded
when events were far fresher in their minds, used to impeach
their accounts about the above-described comments.
E. The Huddleston Discharge
Gary Huddleston was hired by the Respondent in Decem-
ber 1992, and was terminated 11 months later on November
17, when he took time off to go deer hunting without the the
Respondent’s consent, thereby missing 3 days of work. The
parties offer widely divergent accounts of the salient facts
and the motivation underlying those facts.
Huddleston testified that throughout his employment with
the Respondent, he consistently spoke to his supervisors
about his desire to take leave in November so that he could
participate in an annual family reunion and deer hunting
1111AERO DETROIT, INC.
12 While a rank-and-file employee prior to his recent promotion,
Davitt had signed a union authorization card.
13 The Respondent admitted that the word ‘‘denied’’ which ap-
pears on Huddleston’s leave request form was written by
Hendrickson long after leave was denied orally.
party. Thus, he stated he mentioned this matter to an agent
of the the Respondent at the time of his employment inter-
view and to his first supervisor, John Moore, both of whom
assured him that his absence for this purpose would not pose
a problem. Huddleston maintained that he renewed his re-
quest for leave in November with his then supervisor, Torres,
who also led him to believe it would not be a problem. Hud-
dleston recalled that after submitting a leave request form to
Torres, the supervisor asked him to complete another one as
he had misplaced the first.
In late October, Huddleston told his new supervisor, Mike
Davitt, that he would be taking time off which had been ap-
proved by former supervisors.12 Davitt allegedly indicated
there would be no problem, but asked Huddleston to fill out
another written request. Huddleston complied, initially sub-
mitting a handwritten note. Davitt asked that he complete the
Company’s leave request form, which he did on November
1. Not until Thursday, November 11, did Davitt advise Hud-
dleston that he would have to work that Saturday, November
13, the first day of his proposed deer hunting excursion.
Huddleston indicated that he intended to take leave with or
without permission. Davitt testified that he then warned Hud-
dleston that if he did so, he would be treated as a voluntary
quit.
Despite Davitt’s disapproval, Huddleston absented himself
from work on Saturday, Monday, and Tuesday to go deer
hunting with family members. When he returned to work on
Wednesday, November 17, Davitt told him he had volun-
tarily quit by failing to show up or telephone in as required
by the Respondent’s 3-day voluntary quit rule. The rule pro-
vides that an ‘‘Absence of 3 working days without notifying
management—termination of employment (voluntary quit)’’
(R. Exh. 18).
Pleading for his job, Huddleston pointed out that his re-
quests for time off had been approved by previous super-
visors. Moreover, he insisted that management knew why he
was absent. He also urged the Respondent to consider impos-
ing a less draconian sanction in accordance with its rules,
since he had never before been penalized for unexcused ab-
sences. Huddleston was referring to the Respondent’s em-
ployee attendance policy which provided that six unexcused
absences in a 12-month period without proper notification
would result in ‘‘a 3 day lay-off and a written final warning
stating that the next unexcused absence will result in a 5 day
lay-off.’’ (R. Exh. 18 at p. 4.)
Respondent’s witnesses remember these encounters quite
differently. Supervisor John Torres recalled that on one occa-
sion in September 1993, Huddleston spoke to him about tak-
ing time off in November to go deer hunting. Torres testified
that when he told Huddleston he could not authorize any
leave at that time, the employee defiantly told him he would
take the time off, with or without permission. Torres warned
him that taking unauthorized time off would constitute a vol-
untary quit, but Huddleston indicated he didn’t care for he
was independently wealthy. Torres could not remember
whether Huddleston told him he had requested leave from his
former supervisors, nor could he recall if he ever submitted
a leave request form. He was certain, however, that four
other employees also had requested time off for the same
purpose, but he was unable to grant anyone leave at that time
because of pressing production needs. Although Huddleston
openly sported a UAW cap, Torres maintained that he did
not know that he supported the Union.
When Torres was transferred in mid-October, he failed to
tell his successor, Davitt, about Huddleston’s request for
leave. Thus, Davitt testified that Huddleston raised the matter
of time off for the first time on or about November 1. Davitt
explained that by the time Huddleston submitted a leave re-
quest form on November 1, another employee in the same
department, Matt Nezich, also had tendered a request form
for leave for the same few days. Concerned that the work
would not be completed in a timely manner if too many em-
ployees took leave during the brief open season on deer, the
Respondent decided to grant leave to only one person per de-
partment on a first-come, first-served basis. Davitt approved
Nezich’s request, but waited until November 11 to inform
Huddleston that his request was denied and that he would be
required to work that Saturday.13
Determined to participate in the family hunt, Huddleston
did not report to work on November 13, 15, and 16. On
leaving work on November 12, he told his fellow workers
that he would see them when he returned from his trip.
When he reported to work on November 17, Davitt dis-
charged him as a voluntary quit. Huddleston appealed
Davitt’s decision and, met with Wagner, Hendrickson, and
Davitt on November 23. To prepare for that meeting, Wag-
ner reviewed Huddleston’s attendance record, noting on the
form that he had 6 unexcused absences and 11 instances of
tardiness since his date of hire. Unconvinced by Huddle-
ston’s explanation of his absence, and unswayed by his en-
treaty to return to work, Hendrickson testified that he left the
final decision regarding Huddleston’s employment in Davitt’s
hands. Davitt upheld the discharge as a voluntary quit.
F. The Layoffs
The Union filed a representation petition on October 26,
and a representation hearing followed on November 15. At
the hearing, the Respondent moved to postpone the election
for 3 months, asserting that the size of the work force was
temporarily inflated, but would contract by attrition over the
next 90 days. The Respondent’s president and chief operating
officer, Ralph Miller, testified at that hearing that ‘‘we are
confident that there will be few, if any, layoffs.’’ However,
the Regional Director determined that there was no sound
legal justification for postponing the election which was
scheduled for January 6.
Miller’s assertion that there would be few if any layoffs
was echoed by other management officials. On November
13, in assuring a group of employees that rumors regarding
a plant closure were untrue, Jim Wagner said that ‘‘our fu-
ture at Aero looks brighter new contracts were on the hori-
zon, that the Respondent had purchased new presses, was op-
erating at capacity and might need to expand.’’ In a similar
vein, at a meeting for all second-shift employees in late No-
vember, Hendrickson announced that the Company was not
going to lay off any employees; that other companies were
considering giving work to the the Respondent; that the
1112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Of the 25 employees 2 left the Respondent’s employ for reasons
unrelated to the layoff.
15 The Union did not file objections to any part of Miller’s speech.
16 The parties resolved some of the challenges, leaving at issue
ballots cast by alleged discriminatee, Huddleston, and six laid-off
employees.
Company was planning to expand the facility, and take on
more work so that ‘‘everybody could expect to have their
jobs for a long time.’’ (Tr. 251.)
Notwithstanding these assurances, and without notice, the
Respondent laid off 23 employees on December 17. Wood-
ward testified that shortly after he reported to work on De-
cember 17 Hendrickson informed him that the Company was
altering the method of building parts and, consequently, was
permanently downsizing. Accordingly, he was being termi-
nated and ‘‘could never expect to work for Aero again.’’ (Tr.
249.) Hendrickson then admitted to him that he knew it was
a bad time of year, after which he was escorted immediately
from the building. This was the first time that Woodward
had heard anything about the Company’s having to
downsize.
Miller maintained that the seeds of the layoff were planted
almost from the outset. He said that the Company experi-
enced serious technological problems soon after production
began, compelling it to expand operations and hire employ-
ees beyond the number originally anticipated. Because of
these unforeseen costs, the Respondent attempted to raise the
price originally quoted to Chrysler from $1951 to $6500 per
set of panels. Balking at the increase, Chrysler insisted that
the Respondent produce the panels for no more than $3250.
To meet Chrysler’s demand, Aero contracted with another
company, Sora Composites, for help in improving its oper-
ations. By the terms of their agreement, Aero assured Sora
that the price per car would remain stable at $6500 until May
1, 1994, after which, it would be reduced to $3200.
Miller explained that in order to cut costs, certain effi-
ciencies were introduced which decreased manpower needs.
Consequently, in late November, he concluded that the em-
ployee complement should be reduced to 180 by mid-De-
cember and 150 by mid-March 1994. However, Miller testi-
fied that when normal turnover ceased in November, he con-
cluded that layoffs would be necessary. He assigned the Re-
spondent’s human resources manager, Carol Gabris, the task
of selecting 25 employees for layoff, on the basis of merit
rather than seniority.14
Plant Manager Wagner admitted that he strongly opposed
laying off employees the week before Christmas, and at a
time when the Respondent was finally ‘‘getting the process
under control.’’ However, he said that after being overruled,
he worked closely with Gabris to identify the employees who
had received the lowest scores on their most recent perform-
ance appraisals. As a result of the layoffs, the work force
dropped from 208 to 182 by December 19, and the remain-
ing employees were consolidated into a single shift.
Advised that the laid-off employees would not be recalled,
Gabris issued layoff notices which read: ‘‘Effective
lllllll, 1993, you are being permanently laid off
. . . due to the permanent downsizing of the workforce at
that location. At this time, there is no reason to expect that
you will be recalled.’’ (G.C. Exh. 12.)
Curiously, the loss of employees did not alter the amount
of overtime hours worked. During the week of November 14,
when the representation hearing took place, employees
worked a total of 1717 hours overtime. Compare this with
the 2155 hours of overtime accrued during the week of De-
cember 19 when the mass layoff took place, or the following
week when employees logged 1467 overtime hours, while
Chrysler was closed for the Christmas holidays. Although the
Respondent claimed that technological improvements led to
a declining need for employees, the total amount of overtime
accumulated in January—34,801 hours, was greater than the
33,915 overtime hours worked in December when 25 more
employees were on the Respondent’s roster.
G. The Union Election
On January 4, Chief Executive Officer (CEO) Miller ad-
dressed the production employees, advising them that the Re-
spondent lost $5 million between 1990 and 1993, and that
overall, the Company lost $12.3 million in the same time-
frame. While noting that Aero Detroit had successful rela-
tionships with unions in approximately half of its plants, he
stated that in his view, the circumstances then confronting
the Company militated against union representation, that a
union ‘‘would more likely jeopardize . . . than help your fu-
ture.’’15 (Tr. 88.)
The election was held 2 days later on January 6. The re-
sults were not dispositive for the vote was 79 to 75 in favor
of the Union, with 14 challenged ballots.16 This close return
revealed a decline in union support from the initial showing
of interest in October when 65 percent of the bargaining unit
members signed authorization cards.
III. DISCUSSION AND CONCLUDING FINDINGS
A. The Respondent’s Threats and Interrogation Violate
Section 8(a)(1)
1. The applicable precedents
The complaint alleges that the Respondent’s supervisors
repeatedly threatened employees with plant closure and loss
of employment, interrogated them about their union sym-
pathies and on one occasion, promised a benefit, in order to
dissuade them from supporting the Union. Company rep-
resentatives generally did not recall making such statements.
The Respondent argues that even if they occurred, when
viewed in context, the comments were isolated, de minimis
and noncoercive.
An employer does not automatically violate the Act by
asking employees about their union activities. Rather, an em-
ployer’s statement will be found unlawful where the Govern-
ment proves that under the totality of the circumstances, and
taking into account the realities of the workplace, the state-
ment reasonably tends to restrain, coerce, or interfere with an
employee’s Section 7 rights. Sunnyvale Medical Center, 277
NLRB 1217 (1985); Rossmore House, 269 NLRB 1176,
1177–1178 (1984), enfd. sub nom. Hotel & Restaurant Em-
ployees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
In evaluating whether a particular question is coercive, the
Board noted in Rossmore House, supra at 1177, 1178 fn. 20,
that it is necessary to consider the circumstances of each case
in a nonmechanical fashion, including such factors as the
background, the identity of the interrogator and the person
1113AERO DETROIT, INC.
17 Rossmore House reaffirmed an earlier ruling in Blue Flash Ex-
press, 109 NLRB 591 (1954).
being questioned, the nature of the information sought, the
place and method of interrogation, and whether the question
was accompanied by a threat or promise of benefit.17
2. Unlawful questions, threats, and an implied promise
Respondent’s labor relations history does not suggest that
its officials were dead set against unions. Respondent had
bargaining relationships at a number of its other facilities,
and before opening the Madison Heights plant, offered to lo-
cate the work at a site where the UAW already represented
the employees. For unexplained reasons, and apparently due
to no fault of the Respondent, the unit members rejected the
offer. Notwithstanding the Respondent’s initial efforts to co-
operate with the Union, company officials subsequently un-
lawfully interrogated employees, issued devastating threats of
plant closure, and implied that employee grievances would
be favorably resolved by a company-sponsored committee.
The allegedly unlawful question cited in paragraph 11(a)
of the consolidated complaint refers to Hendrickson’s asking
Mansfield why he felt a third party (read, Union) was nec-
essary. As the Respondent’s vice president, Hendrickson was
the highest level official in the plant. Summoning an em-
ployee to his office was a singular event, as he, himself, ac-
knowledged. Moreover, his question arose as he was offering
Mansfield a seat on the C.I.T., the very organization whose
creation was intended to suppress the employees’ interest in
a collective-bargaining representative.
At the same time, it is necessary to recognize that Mans-
field was an overt union advocate who distributed UAW lit-
erature broadly and wore UAW caps, T-shirts, and the like,
making no secret of his prolabor predilections. Hendrickson
posed his question at an early stage of the campaign, yet it
did not cause Mansfield to curtail his activities.
Paragraph 11(a)—An employee’s willingness to play a
prominent role in a union organizing drive is a relevant fac-
tor that should not be ignored when assessing the extent to
which interrogation serves as a restraint on his or her union
activities. However, it will not neutralize an employer’s oth-
erwise coercive question. Sunnyvale, supra at 1218. In this
case, Hendrickson’s query, when considered in context, can
be seen as part of a transparent effort to lure Mansfield from
the UAW’s embrace; and thereby interfere with his free
choice to engage in union activity. As such it was coercive
within the meaning of Section 8(a)(1) of the Act.
Paragraph 11(d)—Sarver, like Mansfield, was a staunch
union proponent, but Moore’s insistent questions to him
came close to badgering. Sarver’s refusal to talk with Moore
on the clock reveals that this situation had an element of ten-
sion in it which surely was exacerbated when not more than
10 minutes later, another supervisor threatened, figuratively
speaking, to rip the shift off his back. It appears that these
incidents occurred in a belligerent atmosphere which was
likely to exercise a restraining effect on the workers’ con-
certed activities.
Paragraphs 11(c), (f), (g), (h), and (i)—A number of the
complaint’s allegations concern threats of plant closure or
job loss. In each such instance, the employee-witness offered
certain descriptive details about the circumstances in which
the remark was made which instill confidence that the teller’s
recollection was clear and the account authentic. For exam-
ple, Sarver’s assertion that Darran threatened to rip the shirt
off his back, created a graphic impression that would be dif-
ficult to forget.
Asked on direct examination if he ever commented about
Sarver’s UAW garb, Darran lamely answered, ‘‘[N]o, I don’t
believe I ever did, not that I can recall.’’ (Tr. 611.) When
asked specifically if he ever said, ‘‘I’d rip the shirt off your
back,’’ Darran’s answer again was an equivocal, ‘‘I don’t re-
call that.’’ This is hardly the emphatic denial the Respondent
claims it to be.
Respondent contends that even if company officials made
the statements about plant closure and job loss attributed to
them, they were de minimis. I do not agree. In light of the
massive curtailment of production which has devastated the
auto manufacturing industry in what is commonly known as
the Rust Belt, threats of plant closure and unemployment in
the Respondent’s workplace was bound to create grave ap-
prehension. This is especially true here where such state-
ments were conveyed to groups of employees not only by su-
pervisors, but by the highest levels of management. Such
dire threats were anything but de minimis. Cf. Metz Met-
allurgical Corp., 270 NLRB 889 (1984).
In sum, by threatening employees with plant closure
and/or job loss should the Union win the election, by interro-
gating them about their union sympathies and promising to
resolve grievances through the vehicle of a company-man-
aged committee, the Respondent violated Section 8(a)(1) of
the Act.
B. The C.I.T. Is a Labor Organization
Paragraphs 12 and 13 of the complaint allege in substance
that the Respondent created, sponsored, dominated, and gave
unlawful assistance to the C.I.T. for the purpose of under-
mining the Charging Union in violation of Section 8(a)(1)
and (2) of the Act. The issues subsumed in these allegations
are the same issues resolved in Electromation, Inc., 309
NLRB 990 (1992), enfd. 35 F.3d 1148 (7th Cir. 1994); that
is, whether the C.I.T. is a labor organization within the
meaning of Section 2(5) of the Act, and whether the Re-
spondent’s conduct vis-a-vis the C.I.T. constitutes domination
or interfering with.
The threshold question to be resolved here is whether the
C.I.T. is a labor organization within the meaning of the Act.
Turning to the statutory definition, Section 2(5) provides that
a labor organization is an entity (1) in which employees par-
ticipate, (2) the organization exists at least in part to deal
with the employer, and (3) these dealings address conditions
of work, grievances, labor disputes, wages, rates of pay, or
hours of employment.
Hendrickson was somewhat artless in telling Mansfield
that the C.I.T. was created to obviate the need for ‘‘third
party’’ representation. Although the representional status of
the employee participants was not expressly stated, it cannot
be disputed that they were carefully handpicked from each
of the departments comprising the Respondent’s operation
and were given the title of ‘‘team leader.’’ Thus, it is reason-
able to infer that, sub silentio, they performed a representa-
tional function.
The Respondent gave a mixed message to the work force
as to the sort of issues the C.I.T. would entertain. On the one
hand, the prepared suggestion forms which the Respondent
1114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
made available to the employees indicated that proposals
concerning quality of production and efficiency of perform-
ance would be accorded paramount attention. Indeed, the
committee received, discussed, and approved suggestions to
improve operations such as installing dust control and water
filtration devices. On the other hand, the Respondent specifi-
cally stated that all suggestions were welcome; at no time
were the committee members or the rank and file told that
certain types of suggestions (apart from those which were
obscene or frivolous) would not be entertained. Accordingly,
the record establishes that from its auspicious beginning to
its lackluster end, the C.I.T. solicited, received, reviewed, ap-
proved, and proposed to management for implementation,
issues that came within the rubric of terms and conditions of
employment.
The more problematic question here is whether the C.I.T.
was formed and functioned in whole or in part to ‘‘deal
with’’ the Respondent. The Supreme Court’s decision in
NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959), goes far
to resolve this question. There, the Court held that the phrase
‘‘dealing with’’ in Section 2(5) is far broader than the term
‘‘collective bargaining’’ and does not necessarily involve the
give and take that is generally associated with labor negotia-
tions. Rejecting Cabot Carbon’s argument that the commit-
tees did not deal with it because they merely forwarded rec-
ommendations, and left final decisions to management, the
Court observed that the power to accept or reject is inherent
in all dealings. In E. I. Dupont & Co., 311 NLRB 893, 984
(1993), the Board further explained that
the term ‘‘bargaining’’ connotes a process by which
two parties must seek to compromise their differences
and arrive at an agreement. By contrast, the concept of
‘‘dealing’’ does not require that the two sides seek to
compromise their differences. It involves only a bilat-
eral mechanism between two parties. That ‘‘bilateral
mechanism’’ ordinarily entails a pattern or practice in
which a group of employees, over time, makes propos-
als to management, management responds to these pro-
posals by acceptance or rejection by word or deed, and
compromise is not required.
The manner in which the C.I.T. functioned brings it within
this expansive definition of ‘‘dealing with.’’ The committee
did not exist to develop its own proposals or to brainstorm;
rather they acted as a filter for the ideas of their fellow
workers; sifting through them to determine whether they
were useful and practicable. The committee was not the final
authority; rather, Moore acted as gatekeeper, forwarding pro-
posals approved by the committee to the proper authority.
Although the process which the C.I.T. used to approve or
disapprove various ideas submitted to it was not clearly ar-
ticulated in the record, it appears that they either voted on
proposals or in some instances, reached agreement by con-
sensus. On some occasions, Moore exercised veto power,
disposing of some proposals simply by failing to act on
them. As the Board observed in E. I. Dupont, supra at 895,
‘‘As a practical matter, if management representatives can re-
ject employee proposals, it makes no real difference whether
they do so from inside or outside the Committee.’’ Where,
as here, management-members of the C.I.T. consider propos-
als with employee-members, and have the power to reject
any proposal, there is ‘‘dealing’’ within the meaning of Sec-
tion 2(5). Based on all the above, I conclude that the C.I.T.
was a labor organization.
C. The C.I.T. Was Employer-Dominated
It is equally obvious that the the Respondent dominated
the C.I.T. The committee would not have been formed nor
would it have met were it not for Hendrickson’s desire to
create an entity which, within limits, would appear to per-
form the functions of a labor organization and thereby under-
mine the employees’ need for one which was genuinely inde-
pendent. The number and identity of the employee represent-
atives on the committee was determined by the Respondent’s
delegate to the committee, Plant Manager Moore, who was
much more than a primus inter pares. He had an absolute
veto, both as to the suggestions which would be considered
and those which would be implemented.
Further, the Respondent provided the venue for the meet-
ings and continued to pay the employees for the time spent
on C.I.T. activity during their regular workday. The Re-
spondent generously agreed to produce the minutes for the
team participants and distribute a newsletter to all employees
about the committee’s accomplishments. Little more needs to
be said to demonstrate that the C.I.T. bore all the characteris-
tics of a labor organization which Respondent controlled
lock, stock, and barrel. The C.I.T. was a paradigm of an
8(a)(2) organization.
D. Huddleston Was Discriminatorily Discharged
In order to satisfy its burden of proof in cases alleging a
discriminatory discharge, the Government must establish that
the alleged discriminatee was engaged in protected concerted
activity, that the employer knew of that activity, and was
driven by antiunion animus to terminate him. The General
Counsel has met this threshold burden.
First, the record unquestionably shows that Huddleston
identified himself as a union adherent by wearing a UAW T-
shirt at work, signing an authorization card, and attending at
least one union meeting at which Davitt also was present
prior to his promotion to a supervisory position. Further, by
establishing a committee which competed with the Union for
the employees’ favor, the Respondent displayed its animus
toward the UAW. In addition, Huddleston was involved in
incidents in which two of his supervisors made unlawful
threats of plant closure. Davitt, Huddleston’s immediate su-
pervisor who initiated and confirmed his termination, was
one of the two. These elements, taken together with the Re-
spondent’s invoking an inappropriate excuse, Huddleston’s
absence to take part in a family deer hunting—to discharge
him meets each of the elements necessary to establish a
prima facie case.
Where, as here, the General Counsel has met its initial
burden, it is incumbent on the the Respondent to prove that
it would have terminated Huddleston in any event, even in
the absence of his union activity. Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
455 U.S. 989 (1982).
The core question is not whether Huddleston absented
himself without management approval, but whether the Re-
spondent terminated him for that reason. On reviewing the
record in this matter, I am convinced that Huddleston handed
1115AERO DETROIT, INC.
18 The Respondent offered no evidence that it had any policy or
practice with respect to the form in which leave was to be requested.
19 In addition to his conversations with Davitt about his impending
absence, Huddleston also told his coworkers when he left work on
Friday, that he would see them when he returned from his hunting
trip.
20 The Respondent’s rules provide that consecutive absences are
treated as a single incident.
the Respondent a convenient excuse to fire him, which it
seized upon to disguise its true motivation—a desire to be
rid of an outspoken union proponent.
Huddleston’s supervisors were fully advised about his de-
sire to take leave for a few days—a family reunion and hunt-
ing party. He made this known from the first day he was on
the job and testified without contradiction that he was told
it would be no problem. Torres also conceded that Huddle-
ston requested leave as early as September. He did not recall
that Huddleston submitted a leave form, but a memory lapse
is not the same as a denial that this did not happen. In con-
trast to Torres’ failure of recollection, Huddleston’s recall
about this matter was detailed and spontaneous. He told of
filling out a request form for Torres, and then filling out a
second form that Torres supplied after admittedly misplacing
the first one. I do not think Huddleston could have invented
this scenario which he related in an entirely unrehearsed
manner. When Huddleston pleaded for his job, management
surely could have verified whether he had requested leave
from Torres long in advance of the days off he requested.
Davitt, too, acknowledged that Huddleston spoke to him
about his desire for time off on/before November 1 and gave
him a handwritten note to that effect. However, Davitt in-
sisted that he had to use a standard form to submit his re-
quest. Although Huddleston apparently was the first one in
his department to request leave during this period, both oral-
ly and in writing, the Respondent relied on the fact that he
failed to submit an official form ahead of a coworker. If the
Respondent’s agents were less intent on ridding themselves
of him, Huddleston’s request could have been honored pursu-
ant to what purportedly was a first-come, first-served policy.
No one claimed that this policy applied solely to written re-
quests, and if it did, the rule is silent about using the Compa-
ny’s leave request form exclusively.
Moreover, the Respondent’s claim that it could not afford
to grant leave to more than one employee per unit is suspect.
Management said that this policy was adopted to prevent a
manpower shortage because a great deal of work was on
hand. Yet, just a few weeks after Huddleston’s dismissal, the
Respondent claimed that by virtue of technological advances,
25 employees were no longer needed.
In their ardor to justify Huddleston’s dismissal, his last
two supervisors, Torres and Davitt, testified that they each
warned him in advance that he would be treated as a vol-
untary quit if he absented himself without the Employer’s
consent. It is more than curious that both men leaped to the
conclusion that Huddleston would be subject to the voluntary
quit rule, when they had no reason to know whether that rule
would be applicable. It is the failure to give notice for a 3-
day absence that brings an employee within the compass of
that rule. Yet, neither Torres nor Davitt could have known
whether or not Huddleston would give the requisite notice.
Nor did they give any thought to the fact that his discussion
of the matter with them could serve as notice, in as much
as the rule is silent both as to when such notice must be
given and the form in which it was to be submitted. Thus,
Huddleston’s repeated expressions of interest in taking leave,
given both orally and by way of an informal note, which he
followed with a formal request on November 1, should have
been enough to exempt him from the voluntary quit rule if
the Respondent was playing by its own rules.18 The incon-
sistencies and contradictions in the Respondent’s treatment of
Huddleston, expose the pretextual nature of its defense.
If the Respondent honestly believed that some discipline
was in order, it had other sanctions other than discharge
which were better tailored to Huddleston’s circumstances. As
Wagner admitted, the voluntary quit rule was invoked when
an employee simply failed to appear on the job and, without
explanation, never bothered to give notice or reappear. The
Respondent had discharged others under this rule, all but one
of whom had failed to return to work. The one employee
who did return, asked for and was granted his job back. The
Respondent’s agents knew full well that Huddleston was on
a hunting trip and had every reason to believe he would re-
turn.19 Thus, the no-show no-call rule was wide of the mark
in his case. The more fitting rule was one which imposed a
3-day layoff for six unexcused absences.20 This is especially
true here, where Huddleston had received a number of warn-
ings but never before was suspended. In fact, prior to his dis-
charge, Huddleston’s most recent disciplinary experience was
a verbal warning on October 23 which Wagner recorded on
a form stating that further violations ‘‘will force me to fol-
low the proper steps of discipline, which will be a written
warning which could lead to a suspension.’’ (R. Exh. 30.)
Judging from Huddleston’s attendance record and absence of
prior suspensions, it is apparent that the Respondent was
very lax in enforcing its attendance policies, at least until
after he became a union advocate.
The Respondent asserts in its brief that Huddleston’s testi-
mony was so lacking in credibility that his testimony about
having obtained approval for time off from Moore, Torres,
and Davitt should be discredited. It serves no useful purpose
here to delve into the instances which the Respondent cites
as proof of Huddleston’s alleged lack of credibility, for in
the final analysis, it would prove very little. Even assuming
that he purposely falsified his prior employment record with
the Respondent, or did not obtain Moore’s assent as he said
he did, it would not alter my finding that he spoke to Torres
about taking leave and filed two request forms with him, or
that he submitted an informal and then a formal note request-
ing leave from Davitt. The Respondent did not refute Hud-
dleston’s testimony in this regard and thus, it is admitted as
true. In sum, Huddleston’s purported lack of credibility does
not alter the conclusion that the Respondent applied its vol-
untary quit rule to him in an arbitrary and disparate manner.
The Respondent also submits that its approval of leave for
a hunting trip for another employee, Nezick, who also at-
tended a union meeting, demonstrates that it was not moti-
vated by antiunion bias. However, the record does not show
whether apart from attending one union meeting, Nezick dis-
played his union sympathies as openly as Huddleston. In this
regard, it is worth noting that Huddleston identified himself
as a union sympathizer not only by wearing UAW para-
phernalia, he also put some challenging questions to Davitt
1116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
21 One official was intrepid enough to suggest that the employees
who were discharged on December 17 would be better off by having
a headstart in finding another job.
which revealed that he had adopted management’s attitude
on attaining supervisory status. Based on the foregoing con-
siderations, I conclude that the Respondent has failed to
prove that it would have terminated Huddleston in the ab-
sence of his union activity and therefore, violated Section
8(a)(1) and (3) in discharging him.
E. The Layoffs Were Unlawful
Under Wright Line, supra, a decision as to whether the
layoff of 23 employees on December 17 was unlawful turns
on the elusive question of the Respondent’s real motive for
this action. In answering this question an analysis of the Re-
spondent’s explanations of its conduct leaves much to be de-
sired.
In a nutshell, the Respondent’s defense is that the layoffs
were required to reduce production costs of the Viper body
panels as demanded by Chrysler. the Respondent assumed
that work force reductions would be achieved though attri-
tion. When the anticipated attrition failed to materialize, the
Respondent was compelled to accomplish its objective by
permanently dismissing employees. Aware that they were in
a sensitive preelection period, the employees were selected
for layoff wholly on the basis of objective factors which had
nothing to do with their union predilections. The following
evaluation of the Respondent’s rationalizations for the layoffs
reveals that they are exercises in sophistry.
I have no doubt that the Personnel Manager Gabris se-
lected the employees to be discharged with great care, scru-
pulously applying objective standards to determine which
employees would be terminated first. The union sympathies
of those chosen were not at issue. Rather, the General Coun-
sel’s theory is that the Respondent carefully timed the dis-
charges to make the point just before the union election, that
power and job security lay in the Employer’s hands, thereby
reinforcing the employees’ apprehensions that they, too,
could lose their jobs if they persisted in supporting the
Union. See America’s Best Quality Coatings Corp., 313
NLRB 470, 472 (1993). There is substantial circumstantial
evidence to support the Government’s theory.
The record shows that the Respondent moved into a new
plant in June because more space was needed. Moreover, at
the highest levels of management, officials publicly assured
employees that the future looked bright, their jobs were se-
cure, and business was expanding. The Respondent did not
and could not deny these statements—too many employees
heard them.
At the representation case hearing on November 15, Miller
requested a 90-day postponement of the election on the
grounds that the staff was artificially inflated and would de-
cline in the next 90 days. However, he indicated that the de-
cline would be accomplished by attrition so that few if any
layoffs would be required. To explain why 23 employees
subsequently were laid off just 4 weeks after claiming that
this would not happen, Miller alleged that attrition unexpect-
edly had ‘‘dried up.’’ In making this claim, he had to be re-
ferring to the 2-week period from November 15 to 30, since
he asserted that the decision to lay off employees was made
at the beginning of December. A 6-week period is hardly
sufficient time to draw hard and fast conclusions that attri-
tion is at a standstill or that it is more than momentary.
Significantly, the Respondent failed to produce any data to
support its claim regarding one of the key elements of its
case; that is, attrition rates in the months prior to November
when such comparisons would be most apt. The failure to
submit real evidence for this time period, when such infor-
mation was within its possession and control, is a serious
flaw in the Respondent’s case, and leads to a reasonable in-
ference that such evidence was not adduced because it did
not support the Respondent’s defense.
Respondent introduced into evidence a ‘‘waterfall’’ graph;
that is, descending steps which chart a reduction in the cost
of the Viper panels by means of efficiency improvements in
the production process. The graph shows the costs falling
from $6717 in January 1993 to $5200 in October of that
year. Standing alone, this exhibit indicates that the Respond-
ent projected a series of improvements in its operations, rath-
er than a decline in the number of employees, to achieve its
economic goals. Respondent’s Exhibit 2 also shows that the
Respondent assumed that increased efficiencies would permit
employees to produce a greater number of car panels, begin-
ning with 2 to 3 pairs of panels in January and expanding
to 15 pairs by October. To accomplish this, the Respondent
needed to enlarge the size of the work force to 207 employ-
ees. It is difficult to comprehend how the Respondent could
continue to produce panels in increasing quantities and at the
same time reduce the work force by 25 employees in a single
month.
This is not to say that the Respondent never could legiti-
mately reduce its work force. It is the curious timing and
size of the reduction that casts doubt on the legitimacy of its
motives. Miller explained that the Company planned to trim
the work force to 145 employees, a decrease of 60 unit em-
ployees. However, no one explained why 25 of the 60, that
is more than 40 percent of the total work force reduction,
were discharged all at once just before Christmas, and at a
time when the number of panels produced per worker only
recently had risen.21 Respondent’s haste in discharging 23
employees in December strikes one as odd given its refusal
to grant Huddleston a brief leave of absence the month be-
fore due to the press of business. The abrupt termination of
23 employees in 1 month also contrasts with its decision to
further reduce the work force by another 35 employees over
a 3-month period.
Testimonial evidence as to when management noticed that
attrition had halted also was in conflict. Miller, on the one
hand, testified that attrition abruptly ceased approximately a
week before the employees were dismissed. Gabris, on the
other hand, indicated that she was instructed in mid to late
November to initiate a layoff procedure because attrition had
halted. Gabris also reported that concern about a low attrition
rate was longstanding. Given these conflicts, there is no
sound basis for believing either one of them.
Miller’s contention that management expected December
work force reductions to occur by attrition, arouses other sus-
picions. Why would an experienced executive be surprised
that employees chose to remain on the job during a pre-
Christmas period? And, since a slowdown in the pace of at-
trition was virtually inevitable at that time of year, why did
Miller not wait a few weeks before ordering the layoffs until
1117AERO DETROIT, INC.
a more normal attrition rate could return and the possibility
of tainting the election behind him?
Respondent claims that the employees were laid off per-
manently due to its need to meet Chrysler’s cost objectives.
Having found that unlawful motives fueled the employees’
premature dismissal, it is equally fair to infer that their lay-
offs were permanent not because of the Respondent’s cer-
tainty they would never be rehired, but because the Respond-
ent was intent on denying them the right to vote in the Janu-
ary 6 election. This is borne out by the Respondent’s recall
in early June of seven employees previously discharged in
December.
Additional evidence damaging to the Respondent’s pur-
ported economic motive for the layoffs is found in the Re-
spondent’s business records setting forth the overtime hours
employees worked before and after the layoff. They show
that during the week of the layoff, employees accumulated
2155 overtime hours; 1 week after the layoff, which encom-
passed Christmas day, overtime totaled 1467 hours. In the
first week of January, with 25 fewer employees, overtime
climbed to 2230 hours, higher by several hundred than the
overtime worked during the week of the layoff. For the bal-
ance of the month, the overtime totaled 1237, 1646, 1846,
and 2270 hours. These figures flatly contradict Miller’s claim
that the amount of overtime plunged after the layoffs.
Respondent submits that its initial efforts to produce the
Viper at an organized facility provides strong evidence that
antiunion bias did not prompt the mid-December layoffs.
Whatever the Respondent’s early views about union rep-
resentation were, they evidently changed by the time the
UAW began its organizing campaign. While Miller’s
preelection speech contained no unlawful comments, it clear-
ly indicated that he was opposed to a union electoral victory.
The record does not reveal why the Respondent’s position to-
ward the Union changed, but there is ample evidence that
change it did. Supervisory threats of plant closure and job
loss, interrogation, the formation of the C.I.T. to counteract
the employees’ interest in the UAW, and the Huddleston dis-
charge, all point in one direction: the Respondent concluded
that union representation of its employees was not in Aero
Detroit’s interests and, therefore, engaged in unfair labor
practices designed to ensure the Union’s defeat at the polls.
F. A Bargaining Order is Appropriate
In NLRB v. Gissel Packing Co., 395 U.S. 575 (1969), the
Supreme Court affirmed the Board’s authority to issue bar-
gaining orders not only in exceptional cases marked by out-
rageous and pervasive unfair labor practices, but also in less
extraordinary cases where there are fewer ‘‘pervasive prac-
tices which nonetheless still have the tendency to undermine
majority strength and impede the election process.’’ In deter-
mining whether a bargaining order is appropriate in this sec-
ond category of cases, it is necessary to consider whether the
effects of past unfair labor practices can be erased by resort
to traditional remedies and whether there is a likelihood they
will reoccur. Id. at 614–615. To this end, the Board has iden-
tified certain ‘‘hallmark violations’’; that is, pervasive mis-
conduct which is likely to have a long-lasting, chilling effect
on a substantial portion of the work force, such as discharges
of union supporters, or threats of plant closure and job loss.
See Somerset Welding & Steel, Inc., 304 NLRB 32, 33–34
(1990); Avecor, Inc., 296 NLRB 727, 749 (1989).
Applying these principles to the present case, I conclude,
in agreement with the General Counsel, that ‘‘employee sen-
timent once expressed through cards would, on balance, be
better protected by a bargaining order.’’ Id. at 615.
It is undisputed that the Union attained the support of well
over a majority of unit employees between October 12 and
19. Taking an overly simplistic approach to this matter, the
Respondent argues that since a number of the alleged unfair
labor practices took place prior to these dates, they could not
have had a deleterious effect on the employees’ desire for
union representation. Pursuant to Board precedent, I reject
the Respondent’s argument.
It is difficult to conceive of threats more calculated to un-
dermine employee support for a union than those of plant
closure repeatedly made here. The fact that most of these
threats were made before the employees signed UAW author-
ization cards, does not diminish their unlawful impact, for it
fails to take into account the cumulative toll of an employ-
er’s ongoing misconduct in wooing employees away from
their original prounion stance. Massachusetts Coastal Sea-
foods, 293 NLRB 496, 499–500 (1989).
Employees initially may discount threats of plant closure
and job loss as mere bluster. However, when such threats are
followed by the mass layoff of 23 employees, and discharge
of a prominent union advocate, they take on an ominous re-
ality. Thus, the fact that the Union attained majority support
after a number of threats were made does not eradicate their
chilling effect where, as here, the employees could observe
that the Respondent was willing to convert its threats into ac-
tion. Moreover, the Board has posited that unfair labor prac-
tices committed before a union has attained a majority, will
not immunize an employer from the issuance of a bargaining
order, since its own actions have made it uncertain whether
the employees can freely elect a bargaining representative.
Brookland, Inc., 221 NLRB 35, 40 (1975).
In any event, the Respondent’s officials, including CEO
Hendrickson, continued to intermingle comments about the
plant’s bright future with threats of plant closure even after
a majority of the employees had authorized the Union to act
as its collective-bargaining representative. The Respondent
points out that Hendrickson, who committed a number of the
unfair labor practices alleged in the complaint, no longer is
employed at the Madison Heights facility. However, other
members of management responsible for commiting unfair
labor practices, remain in the Respondent’s employ. For ex-
ample, Wagner, Hendrickson’s successor, is not blameless,
for he was one of the management officials who in mid-No-
vember assured employees that the Company would expand.
He also was involved in Huddleston’s unlawful discharge.
Even without unlawful antecedents, the layoff of a signifi-
cant segment of the employee population and the unwar-
ranted discharge of a known union proponent are intimidat-
ing enough to have a highly coercive effect, not readily
erased by the passage of time. Somerset Welding & Steel
Inc., 304 NLRB 32, 33–34 (1990). The Respondent’s heavy-
handed conduct in these matters was certain to receive wide-
spread and long-lasting attention by employees whose very
livelihood was at stake. Indeed, the Board finds discharges
and threats of plant closure like those in the instant case,
‘‘‘not only are hallmark violations, but are among the most
flagrant of unfair labor practices.’’’ Somerset Welding &
Steel, supra at 33; Avecor, Inc., supra at 749.
1118 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 Between January and April, another 35 workers voluntarily left
the Respondent’s employ and were not replaced. The Respondent
may have intended to reduce the size of its work force by attrition
at some future point in time. However, apart from certain exhibits
which were produced for purposes of litigation, which I found inher-
ently unreliable for that reason, the Respondent failed to present reli-
able evidence that the 23 employees who were dismissed perma-
nently on December 17, would have been laid off on at that time
were it not for the Respondent’s intent to demonstrate its power and
instill its employees with fear about job security on the eve of the
election.
23 The Respondent’s attempt to characterize its Scrooge-like layoff
decision as a charitable act which gave the employees a headstart
in job-hunting during the Christmas season, borders on the ludicrous.
The coercive impact of the mid-December layoffs was
augmented by their timing, coming just 1 week before
Christmas, and only several weeks before the union election.
the Respondent may have intended to reduce the size of the
work force by attrition over a period of months, a phenome-
non that had proved consistently reliable except for a brief
period in the latter half of November.22 Without waiting to
determine if normal turnover rates would return with the new
year, and without any notice to the affected employees, the
Respondent abruptly dismantled a significant segment of its
employee population.23 By its precipitous action, the Com-
pany was able to fulfill its contractual obligations to Chrysler
only by continuing to assign significant amounts of overtime
to employees, indicating that the layoffs were hasty and pre-
mature. In fact, the Respondent broadcast that it was willing
to go to almost any lengths to defeat the Union.
I find it highly unlikely that a make-whole remedy and
order of reinstatement would suffice to erase from the em-
ployees’ memories, the indelible imprint of Huddleston’s un-
just discharge, or the unexpected layoff of 23 employees. Re-
instatement and backpay, offered months after discriminatory
dismissals, cannot eradicate the harm that was done here.
Nor is it likely that a cease-and-desist order, posted under
Board and perhaps judicial mandate, would heal the coercive
effect on employees of the Respondent’s threats of plant clo-
sure and job loss, particularly since the threats were given
substance by Huddleston’s discharge and the wholesale lay-
offs. In light of these considerations, I find that a bargaining
order, effective from October 19, the date on which the
Union clearly had majority support, is warranted here.
Rodeway Inn of Las Vegas, 252 NLRB 344 fn. 3 (1980).
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (5), and (6) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(3) of the Act.
3. Beginning on October 19, 1993, and continuing there-
after, the Union was designated by a majority of the Re-
spondent’s employees in an appropriate unit as their exclu-
sive bargaining representative for the following appropriate
unit:
All full-time and regular part-time production and
maintenance employees employed by Respondent at its
Madision Heights facility, including mold employees,
paint employees, tool repair and maintenance employ-
ees, wet sand employees, quality control employees and
shipping and receiving employees, but excluding office
clerical employees, guards and supervisors as defined in
the Act.
4. The Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(1) by threatening employ-
ees with plant closure and job loss, interrogating them about
their union sympathies, and promising to resolve their griev-
ances.
5. The Respondent violated Section 8(a)(1) and (2) by es-
tablishing and dominating the C.I.T.
6. The Respondent violated Section 8(a)(1) and (3) by dis-
charging employee Gary Huddleston on November 17, 1993,
because he engaged in union activities, and by permanently
laying off 23 employees in order to chill the unit employees’
support of the Union.
7. By violating Section 8(a)(1), (2), and (3) as outlined
above, the Respondent prevented a free and fair election.
Therefore, to best serve the purposes of the Act, the Re-
spondent is required to recognize and bargain with the Union
as of October 19, 1993, the date by which a majority of em-
ployees signed authorization cards designating the Union as
their exclusive bargaining agent, concerning rates of pay,
wages, hours, and working conditions.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent engaged in certain un-
fair labor practices, I find that it must be ordered to cease
and desist and to take certain affirmative action designed to
effectuate the policies of the Act.
Affirmatively, having discriminatorily discharged Gary
Huddleston on November 17, 1993, the Respondent shall be
ordered to offer him reinstatement to the job he previously
performed or, if such job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or
other rights and privileges previously enjoyed. Further, the
Respondent shall be ordered to make him whole for any loss
of earnings and other benefits, computed on a quarterly basis
from date of discharge to date of proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (1950), plus interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987).
Further, having permanently laid off 23 employees on De-
cember 17, 1993, in order to chill support for the Union
among those employees who remained in its employ, the Re-
spondent shall make them whole for any loss of earnings and
other benefits, computed on a quarterly basis from date of
discharge to the date that the Respondent demonstrates in a
compliance proceeding that they would have been terminated
for legitimate business reasons, less any net interim earnings,
as prescribed in F. W. Woolworth Co., 90 NLRB 289
(1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).
In addition, the Respondent shall be required to officially
disestablish the C.I.T. I shall also recommend that the elec-
tion held on January 6, 1994, be set aside, and that, on re-
quest, the Respondent shall be required to bargain with the
Union, such bargaining to be retroactive to October 19, 1993,
1119AERO DETROIT, INC.
the date on which the UAW attained majority support among
the Respondent’s employees in an appropriate unit.
Respondent also shall be ordered to post a notice to em-
ployees, as set forth as the appendix to this decision.
[Recommended Order omitted from publication.]