Aero Metal Forms

National Labor Relations Board - Board Decisions

Feb 10, 1993

310 N.L.R.B. 397 (N.L.R.B. 1993)

397
310 NLRB No. 49
AERO METAL FORMS
1 Pursuant to a Stipulated Election Agreement, an election was
held in a unit of the Respondent’s production and maintenance em-
ployees on March 12, 1991. Six ballots were cast for, and six
against, the Charging Party, with three challenged ballots. (Two of
the challenged ballots were consolidated for hearing with the instant
unfair labor practice proceeding.) In the absence of exceptions, we
adopt, pro forma, the judge’s recommendation to sustain the chal-
lenge to the ballot of Ken Southworth. The challenged ballot of
Thomas Wood is the sole ballot remaining at issue.
2 On June 3, 1992, Administrative Law Judge Burton Litvack
issued the attached decision. Both the Respondent and the General
Counsel filed exceptions.
The National Labor Relations Board has delegated its authority in
this proceeding to a three-member panel.
3 The General Counsel and the Respondent have excepted to some
of the judge’s credibility findings. The Board’s established policy is
not to overrule an administrative law judge’s credibility resolutions
unless the clear preponderance of all the relevant evidence convinces
us that they are incorrect. Standard Dry Wall Products, 91 NLRB
544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully
examined the record and find no basis for reversing the findings.
4 The complaint alleged that the discharge violated Sec. 8(a)(3)
and (1), but the General Counsel has excepted only to the judge’s
failure to find that by this conduct the Respondent violated Sec.
8(a)(1). 5 The letter quoted Sec. 8(a)(3) and (1).
Aero Metal Forms, Inc. and District 70, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO. Cases 17–CA–15539
and 17–RC–10645
February 10, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issues addressed here are whether the Respond-
ent unlawfully terminated two employees and whether
it otherwise violated Section 8(a)(1).1
The Board has considered the decision2 and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions to the extent consistent with this decision.
1. The judge found that the evidences was insuffi-
cient to show that Respondent discharged employee
Janet Lester because she refused to comply with the
Respondent’s demand that she fabricate an account of
events to conceal evidence of an unfair labor practice
and that the discharge therefore did not violate Section
8(a)(1). We disagree.4
The pertinent facts are as follows. The Respondent
hired Janet Lester as a bookkeeper on January 28,
1991. Her duties included maintaining the Respond-
ent’s financial records, calculating the weekly payroll
based on the employees’ timecards, preparing job costs
records also based on the timecards, maintaining the
accounts payable and receivable records, and
invoicing.
On March 8, 1991, at or about noon, the Respondent
received two certified letters from the Union, one de-
manding recognition and the other informing the Re-
spondent of the Union’s campaign. Office Manager
Tammara Cummins immediately opened and read both
letters. When secretary/receptionist Janet Wallace and
Lester returned from lunch at or about 12:30 p.m.,
Cummins read the demand letter to them and let Lester
read the second letter. Cummins said that the demand
for recognition would ‘‘greatly’’ upset Zaudke and
make him ‘‘hell to work with.’’ She then asked if
Wallace or Lester had heard of any of the employees
wanting to form a union. Both Wallace and Lester an-
swered, ‘‘no.’’ Cummins said she suspected a couple
of employees as being in charge of the organizing and
named employee Thomas Wood. Lester responded that
Cummins should not jump to any conclusions.
Cummins added that she was going to ask the Ship-
ping and Receiving Manager Wanda Fleming if she
had heard anything about forming a union. Lester sug-
gested that Cummins read the Union’s second letter
again ‘‘because it clearly states that we could not inter-
fere . . . or discuss anything . . . concerning the
union or forming a union.’’5
Shortly after this conversation, Lester overheard
Cummins discuss the demand letter with Zaudke.
Zaudke said he would refuse to recognize the Union.
After Zaudke left, Cummins asked Lester to come into
her office. Cummins told Lester that Zaudke was going
to lay off Wood because he was only hired on a tem-
porary basis. Lester responded that ‘‘temporary’’ nor-
mally meant 60 days, not the many months Wood had
been working. Cummins referred to the fact that
Wood’s father is a ‘‘big shot in the Union at Boeing.’’
When Zaudke came back into Cummins’ office, Lester
told him, ‘‘if you’re going to layoff Tom Wood, he is
going to have to be the first one you rehire. You can’t
hire someone else in the shop and put them over into
. . . welding.’’ Zaudke replied that this was not the
law in Kansas. Then, according to Lester’s credited
testimony, ‘‘it was said by [Cummins] and agreed by
Mr. Zaudke that I would say what they wanted me to
say about when they received the letter and all that.’’
(At the hearing, both Cummins and Zaudke testified
that Zaudke did not read the union letter demanding
recognition until after he decided to lay off Wood.)
Lester replied that she would not lie, and the conversa-
tion ended.
Shortly after 3 p.m., March 8, Zaudke met with
Wood and Welding Department Manager Walters.
Zaudke told Wood he was being laid off due to a
shortage of work.
According to Lester, during the week following her
refusal to comply with the demand of Zaudke and
Cummins that she fabricate an account as to when the
Respondent received the Union’s recognition demand,
Zaudke’s and Cummins’ attitude toward her became
‘‘very hostile.’’ Prior to March 8, Zaudke would say
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Marsh testified that he did not give Zaudke an opinion as to
Lester’s competency.
7 The timecards were used for two purposes: to determine the em-
ployees’ daily and weekly hours of work for payroll purposes and
to maintain accurate job costs records. Consistent with this latter
purpose, the employees were required to note on what job they were
working during each quarter hour.
8 The exhibit tabulating these errors was prepared in April 1991
in response to the unfair labor practice charge. During Lester’s first
2 weeks, Cummins performed most of the timecard calculations;
they both performed them in the third week: and in Lester’s final
4 weeks, she did them herself, with Cummins checking for accuracy.
There were 30 to 31 employees whose timecards had to be proc-
essed each week. Many employees would work on different tasks in
a day and each time they worked on a different task, they made a
time entry, noting a cost code which consisted of a five-digit number
and a shop code, a three-digit number. Some employees would have
15 different cost codes on their timecards for a week. The timecards
were handwritten, including some with very small handwriting.
9 The Respondent does not contend or present evidence that any
losses were caused by Lester’s errors. The evidence indicates only
one error that was not discovered by Cummins. In mid-February,
Zaudke called Lester into his office to point out that she had incor-
rectly coded a timecard as raw material when it should have been
labor. According to Lester, she took the code off the timecard which
was written as ‘‘raw material.’’ When Lester asked him if he wanted
her to correct the error, Zaudke replied it was ‘‘no big deal.’’ He
then pointed to a 6-inch high stack of other mistakes that needed to
be inputed and corrected on job costs. (There was no evidence that
Lester was responsible for those mistakes.)
10 Citing Phoenix Newspapers, 294 NLRB 47 (1989), and Country
Boy Markets, 283 NLRB 122 (1987), enfd. sub nom. Delling v.
NLRB, 869 F.2d 1397 (10th Cir. 1989).
‘‘good morning’’ to her on a regular basis, and, if he
needed to speak to her, would summon her into his of-
fice. During the week of March 11 through 15, Zaudke
no longer said ‘‘good morning’’ to Lester, and yelled
from his office if he wanted to speak to her. Further,
despite Cummins’ earlier friendliness to Lester, after
March 8, she would only speak to Lester concerning
work-related matters.
At approximately 3 p.m., Friday, March 15, Lester
was called to a meeting with Zaudke and Cummins in
Zaudke’s office. Zaudke had a stack of timecards on
his desk. He said he was going to have to let Lester
go because she was making too many errors on the
timecards. Lester asked why these had never been
called to her attention before but received no response.
She then asked why, if she made so many errors, the
payroll was coming out correctly. Zaudke and
Cummins did not reply. Zaudke reported that the Re-
spondent’s accountant, Ron Marsh, had told him that
Lester had no experience in profit and loss, and gen-
eral ledger bookkeeping.6 Lester questioned why, if
such was the case, she had been able to correct a re-
cent bookkeeping mistake. Zaudke and Cummins of-
fered no answer.
Zaudke testified that he discharged Lester because of
her excessive errors in computing timecards.7 Accord-
ing to Zaudke, the timecard errors could cost the Re-
spondent a lot of money and the number of Lester’s
errors was increasing. Zaudke testified that he made
the decision to terminate Lester on Friday, March 15,
the date she was discharged. Cummins’ testimony var-
ied as to when the decision to discharge Lester was
made. First, she testified it was on March 8, then said
it was the next week, ‘‘after payroll had been issued,’’
then explained that the actual decision to terminate
Lester was made on Wednesday, March 13, but not
communicated to her until the following Friday, and fi-
nally, consistent with Zaudke, testified that the deci-
sion had been discussed Wednesday and actually made
on Friday.
As for the timecard errors themselves, timecard mis-
takes could be of two types—incorrectly adding hours
or noting improper job codes. According to Zaudke,
Lester made both types of mistake. The Respondent
offered an exhibit summarizing Lester’s weekly time-
card errors from the start of her employment. This
document shows that in the initial 3 weeks of her em-
ployment, Lester made no errors, then 2, then 4, and,
during the final 4 weeks, 15, 2, 14, and 18, respec-
tively.8 The errors are not broken down as to type.
Each Monday morning, Lester would process the
employees’ timecards for the prior week. Each Mon-
day, Cummins would discuss any timecard errors with
her and the errors would be corrected but, according
to Lester’s credited testimony, this was never done in
the form of criticism or discipline. Cummins never
noted to Lester the number of errors made. Lester’s er-
rors could have lead to overpayment or underpayment
of wages or improper allocation of job costs.9 How-
ever, according to Lester, Cummins never mentioned
possible discipline or the need for her to improve her
accuracy. The Respondent never warned or otherwise
disciplined Lester for the errors. Instead, Lester testi-
fied, Zaudke and Cummins praised her constantly for
the good job she was doing and thanked her ‘‘for
doing such a good job in catching things up.’’ Zaudke
admitted he praised Lester’s work during the first week
or so in order ‘‘to establish a professional rapport with
her.’’ Cummins also stated that she praised Lester’s
work a few times when she did something well.
As the judge correctly observed, the proposition that
an employer violates Section 8(a)(1) of the Act by dis-
charging a supervisor for refusing to commit an unfair
labor practice against statutory employees10 clearly
compels the conclusion that an employer also violates
the Act if it terminates an employee for refusing to fa-
cilitate the commission of an unfair labor practice
against a fellow employee. In our view, contrary to the
judge’s conclusion, the General Counsel has estab-
lished by a preponderance of the evidence that the Re-
spondent discharged Lester for precisely that reason,
i.e., because she refused to participate in facilitating
399AERO METAL FORMS
11 The judge referred to changes in Zaudke’s and Cummins’ atti-
tudes toward the office staff. There is, however, no evidence that
Zaudke and Cummins had a change of attitude toward any other of-
fice staff personnel.
12 Shattuck Denn Mining Corp. v. NLRB, 362 F.2d 466, 470 (9th
Cir. 1966).
13 Further supporting the finding that the Respondent was search-
ing for a supportable basis for discharging Lester was its shifting
testimony as to when it made the decision to discharge Lester. As
described above, Zaudke testified the decision was made on March
15. However, Cummins at first testified the decision was made on
March 8, which significantly precedes the Respondent’s review of
Lester’s March 11 timecard computation on which it relied in part
as the basis for her discharge. Cummins revised her testimony to
state that the decision was made ‘‘after payroll had been issued,’’
then to Wednesday, March 13, and finally to Friday, March 15. It
is well settled that shifting testimony explaining a discharge evinces
a discriminatory motive.
14 Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st
Cir. 1981), cert. denied 455 U.S. 989 (1982). See Limestone Apparel
Corp., 255 NLRB 722 (1981); Arthur Young & Co., 291 NLRB 39
(1988).
the concealment of an unlawful discharge when she
declined to fabricate testimony as to when the Re-
spondent received the Union’s recognitional demand
letter.
First, contrary to the judge, we believe it is not un-
duly speculative to attribute Zaudke’s and Cummins’
change of attitude toward Lester to her refusal to en-
gage in the fabrication of testimony. According to Les-
ter, that change of attitude was manifested on March
11, the next workday after her refusal. Zaudke and
Cummins who had previously been cordial to her were
now ‘‘very hostile.’’ Five days of this hostility con-
cluded with Lester’s discharge on March 15. The
judge’s supposition that their hostility might have been
generally attributable to the pressures of the Union’s
organizing campaign is not a logical inference from the
record because Lester was not a unit member or active
in the organizing campaign. The only reasonable ex-
planation for hostility directed specifically at Lester
was her refusal to cooperate with the scheme to cover
up Wood’s unlawful discharge. We, therefore, infer
that their hostility was caused by Lester’s refusal.11
The timing of Lester’s discharge, 1 week after her
refusal to cooperate in the coverup similarly supports
a finding that the discharge was in retaliation for
Lester’s refusal to lie on the Respondent’s behalf. We
are not persuaded by the judge’s suggestion that the
timing can be accounted for by ‘‘an inordinate number
of errors’’ in payroll calculations committed by Lester
on March 11. The errors made on that day were not
significantly in excess of those that Lester had made
in previous weeks without evoking any indication from
her superiors that she was putting her job at risk. In
any event, the errors committed on March 11 cannot
explain the hostility by Lester’s superiors that com-
menced that morning.
Indeed, it is the disparity between the Respondent’s
purported reason for Lester’s discharge and its super-
visors’ overt responses to her work prior to her refusal
to participate in the coverup scheme concerning
Wood’s discharge that is the most compelling evidence
of an unlawful motive.
According to Lester’s credited testimony, at no time
did Cummins indicate to her that she needed to im-
prove her accuracy or that these errors were a par-
ticular problem serious enough to lead to discipline or
discharge. Neither did Cummins report to Lester how
many errors were made per week. Lester was never
disciplined or warned because of the errors. According
to Lester, Cummins told her she ‘‘was doing real good
since there are so many entries on the time cards’’ and
that it was ‘‘very hard to catch everything and to get
them correct.’’ Both Cummins and Zaudke admit they
praised Lester during her brief 6-week tenure with the
Respondent.
Evidence was presented of only one incident when
Cummins did not catch and correct an error. In mid-
February, Zaudke called Lester into his office and told
her that she had coded some hours into ‘‘raw mate-
rial’’ instead of ‘‘labor.’’ When Lester asked Zaudke
if he wanted her to correct the error, he answered that
it was ‘‘no big deal.’’ He then pointed to a stack about
6 inches high of other mistakes not made by Lester
that needed to be inputed and corrected on the job
cost.
All the above indicates that the Respondent was not
particularly concerned with the number of timecard er-
rors Lester made until after her March 8 refusal to
comply with its unlawful demand. We are left with the
conclusion that the Respondent’s purported reason for
the discharge was pretextual.12
In view of the pretextual nature of the reason given
for the discharge, and considering the hostility directed
toward Lester as a result of her refusal to lie for the
Respondent in connection with the Wood discharge,
we conclude that the General Counsel has established
by a preponderance of the evidence that Lester was
discharged for unlawful reasons.13
The Respondent does not assert any business reason,
other than the one which we above have found
pretextual, for discharging Lester even if she had not
engaged in protected conduct. Therefore, it has not met
its burden under Wright Line.14 We, therefore, find
that the Respondent’s discharge of Lester on March
15, 1991, was in violation of Section 8(a)(1).
2. As described above, on March 8, Cummins told
Lester that the Respondent was laying off Thomas
Wood because he was only hired on a temporary basis.
Lester replied that ‘‘temporary’’ usually meant 60
days, not the many months Wood had been working.
At that point, Cummins added that Wood’s father is a
‘‘big shot in the Union at Boeing.’’
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 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.’’
The judge found that Cummins’ statement about
Wood’s being laid off and her reference to Wood’s fa-
ther as a union officer ‘‘were not so closely connected
so as to be coercive.’’ However, the judge found that
Cummins’ comments demonstrated the Respondent’s
animus against Wood.
We have adopted the judge’s finding that Cummins’
comments demonstrate animus against Wood. In addi-
tion, we find that Cummins’ comments linked the lay-
off of Wood to the union activity of one of Wood’s
relatives, and to Wood’s union activity itself. This
finding is supported by the fact that earlier that same
day, Cummins told Lester she suspected Wood of
being one of the leaders of the union campaign. We
find that Cummins’ comments had the tendency to co-
erce employee Lester in the exercise of her Section 7
rights and were, therefore, in violation of Section
8(a)(1).
AMENDED CONCLUSIONS OF LAW
1. Insert the following as Conclusion of Law 5 and
renumber Conclusion of Law 5 as 6.
‘‘5. On March 8, 1991, the Respondent made state-
ments to Janet Lester linking the layoff of employee
Thomas Wood with the fact that his father is a union
officer and thereby engaged in conduct violative of
Section 8(a)(1) of the Act.’’
2. Insert the following as new Conclusion of Law 7
and renumber the subsequent paragraphs.
‘‘7. On March 15, 1991, the Respondent discharged
Janet Lester because she refused to fabricate evidence
with regard to the receipt of the Union’s demand for
recognition letter in order to establish a sham defense
for the unlawful layoff of Thomas Wood and thereby
engaged in conduct violative of Section 8(a)(1) of the
Act.’’
ORDER
The National Labor Relations Board orders that the
Respondent, Aero Metal Forms, Inc., Wichita, Kansas,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Laying off employees because of suspicions that
they engaged in union or other protected concerted ac-
tivities.
(b) Discharging employees because they refused to
fabricate evidence to create a sham defense of the
commission of unfair labor practices.
(c) Interrogating employees about the union activi-
ties of their fellow employees.
(d) Demanding that employees fabricate evidence in
order to create a sham defense for the commission of
unfair labor practices.
(e) Making statements to employees linking the lay-
off of an employee with the fact that a relative of the
employee is a union officer.
(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) Offer reinstatement to employees Thomas Wood
and Janet Lester to their former positions of employ-
ment and, if such jobs no longer exist, to substantially
equivalent positions of employment and make them
whole for any lost earnings they may have suffered as
a result of the discrimination against them as pre-
scribed in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
(b) Expunge from its files any reference to the
March 8, 1991 layoff of Wood and the March 15,
1991 discharge of Lester, and notify them, in writing,
that this has been done and that evidence of the layoff
or discharge, respectively, will not be used as a basis
for any further personnel action against the employee.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay
due under the terms of this Order.
(d) Post at its facility in Wichita, Kansas, copies of
the attached notice marked ‘‘Appendix.’’15 Copies of
the notice, on forms provided by the Regional Director
for Region 17, after being signed by the Respondent’s
authorized representative, shall be posted by the Re-
spondent immediately upon receipt 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 Re-
spondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER ORDERED that the complaint shall
otherwise be dismissed.
IT IS FURTHER ORDERED that the challenge to the
ballot of Thomas Wood having been overruled, it shall
be opened and counted and a revised tally of ballots
be issued and served on the parties. If the tally shows
a majority vote for the Union, then the Union shall be
certified as representative in the appropriate unit. If the
revised tally fails to show that the Union has received
a majority of the valid ballots counted, a certification
of results shall issue.
401AERO METAL FORMS
1 Unless otherwise stated, all events herein occurred during cal-
endar year 1991.
2 On March 12, the Union filed a petition for a representation elec-
tion with the Regional Director for Region 17, seeking to represent
Respondent’s production and maintenance employees. The parties
entered into a Stipulated Election Agreement, and a representation
election was conducted on April 22. Of Approximately 12 eligible
voters, 6 cast ballots for and 6 cast ballots against representation,
and there were 3 challenged ballots, 1 of which the Regional Direc-
tor sustained and 2 raised substantial issues of both fact and law.
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.
WE WILL NOT layoff our employees because we sus-
pect that they are involved in union or other protected
concerted activities.
WE WILL NOT discharge employees because they re-
fused to fabricate evidence to create a sham defense of
the commission of unfair labor practices.
WE WILL NOT interrogate our employees as to the
union activities of their fellow employees.
WE WILL NOT demand that employees fabricate evi-
dence in order to create a sham defense for the com-
mission of unfair labor practices.
WE WILL NOT make statements to employees linking
the layoff of an employee with the fact that a relative
of the employee is a union officer.
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 offer Thomas Wood and Janet Lester im-
mediate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or any
other rights or privileges previously enjoyed and WE
WILL make them whole for any loss of earnings and
other benefits resulting from their discharge, less any
net interim earnings, plus interest.
WE WILL notify Thomas Wood and Janet Lester, in
writing, that we have removed from our files any ref-
erence to his discriminatory layoff or her discrimina-
tory discharge, respectively, and that the layoff or dis-
charge will not be used against them in any way.
AERO METAL FORMS, INC.
Lyn R. Buckley, Esq., for the General Counsel.
William E. Dye, Esq. (Foulston & Siefkin), of Wichita, Kan-
sas, for the Respondent.
Donald Stella and Jack R. Nugent, of Bridgeton, Missouri,
for the Union.
DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. Pursuant to
an original unfair labor practice charge, a first amended un-
fair labor practice charge, and a second amended unfair labor
practice charge, in Case 17–CA–15539, filed by District 70,
International Association of Machinists and Aerospace Work-
ers, AFL–CIO (the Union), respectively on April 8 and 12
and May 20, 1991, the Regional Director for Region 17 of
the National Labor Relations Board (the Board) on May 20,
1991,1 issued a complaint, alleging that Aero Metal Forms,
Inc. (Respondent), had engaged in unfair labor practices, vio-
lative of Section 8(a)(1) and (3) of the National Labor Rela-
tions Act (the Act). Subsequently, on May 22, the Regional
Director issued an order, consolidating a hearing on chal-
lenged ballots in Case 17–RC–106452 with the hearing in the
above-described unfair labor practice matter. Pursuant to a
notice of hearing in the consolidated matters, a hearing was
conducted by me in Wichita, Kansas, on October 1 and 2.
At the hearing, all parties were afforded the opportunity to
examine and cross-examine all witnesses, to offer into the
record all relevant evidence, to argue their legal positions
orally, and to file posthearing briefs. The documents were
filed by counsel for the General Counsel and by counsel for
Respondent and have been carefully considered. Accordingly,
based on the entire record herein, including the posthearing
briefs and my observation of the testimonial demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation with an office and place of
business in Wichita, Kansas, is engaged in the business of
manufacturing spare parts for military aircraft. During the
12-month period preceding the issuance of the instant com-
plaint, which period is representative, in the normal course
and conduct of its business operations, Respondent sold and
shipped goods and products, valued in excess of $50,000,
from its Wichita, Kansas facility directly to points outside
the State of Kansas. Respondent admits that, at all times ma-
terial, it has been an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
Respondent admits that the Union is a labor organization
within the meaning of Section 2(5) of the Act.
III. ISSUES
The complaint alleges that Respondent violated Section
8(a)(1) and (3) of the Act by terminating employee Thomas
E. Wood on March 8 because of suspected union activities
and employee Janet E. Lester on March 15 because she re-
fused to participate in a scheme to unlawfully terminate
Wood. Contrary to the General Counsel, Respondent con-
tends that Wood was lawfully laid off in anticipation of a
projected lack of work and that Lester was terminated for
poor work performance. In addition, the complaint alleges,
and Respondent denies, that it violated Section 8(a)(1) of the
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Respondent obtains its business from the Government through a
bidding procedure. In this regard, the Department of Defense main-
tains lists of manufacturers who have, or who desire to, bid for the
contracts to produce various spare parts for the military. In order to
solicit bids when a particular part is required, the Department of De-
fense informs these contractors of the solicitation, sending to them
the manufacturing specifications, including the production blueprints,
so that the companies may determine their manufacturing price for
the part and submit a bid for its production. Thereupon, the Depart-
ment of Defense determines which manufacturer has submitted the
lowest bid and awards it the contract to produce the part. The terms
of the contract, including the price of the part, must conform to the
bid.
4 Respondent admits that both Zaudke and Cummins supervisors
within the meaning of Sec. 2(11) of the Act and agents within the
meaning of Sec. 2(13) of the Act.
5 While denying his status as an agent within the meaning of the
Act, Respondent conceded that Walters was a supervisor within the
meaning of Sec. 2(11) of the Act.
6 While working at Beech Aircraft, Wood had been a member of
the Union, which represented the production employees at that man-
ufacturer. After his termination, Wood filed a grievance against
Beech Aircraft over his discharge. The grievance was pending during
his employment with Respondent, a fact known to Jim Zaudke.
There is, in fact, no dispute that Zaudke granted Wood time off to
appear at various proceedings concerning the grievance. Finally,
there is no dispute that Respondent was aware that Wood’s father
was also employed by Beech Aircraft and that he was involved in
the Union’s hierarchy at said employer.
7 Zaudke maintained that such was as a result of Respondent’s nor-
mal practice of reviewing employees for raises each February and
August.
8 Zaudke averred, ‘‘We gave everybody raises at that point in
time.’’
Act by instructing employees to lie in order to conceal the
date on which it learned of the Union’s demand for recogni-
tion; by interrogating its employees regarding other employ-
ees’ union sympathies and activities; and by informing em-
ployees that other employees would be laid off because of
their union activities. Finally, with regard to the challenged
ballots, one concerns that of employee Wood and Respond-
ent’s contention that he was lawfully laid off, and the other
pertains to employee Ken Southworth and the contention that
he had no expectation of recall as of the payroll eligibility
date.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Facts
The record establishes that approximately 95 percent of
the business of Respondent is generated through contracts
from the Department of Defense for the manufacture of
structural spare parts for military aircraft;3 that Respondent
has been in business as a defense contractor since approxi-
mately 1981; that Respondent’s Wichita, Kansas plant con-
sists of two buildings—a main building housing the office
and the welding department, the hard tooling shop, the fab-
rication department, and the shipping and receiving depart-
ment and a second building in which the plaster pattern de-
partment and a raw material storage area are located; and
that Respondent normally employs approximately 20 produc-
tion workers. The record further establishes that Respond-
ent’s president is James Zaudke, who is in overall charge of
all business operations and to whom the various production
department managers directly report, and that Tammara
Cummins is Respondent’s contract administrator and pur-
chasing agent and performs the duties of office manager.4
There is no dispute herein that, in early July 1990, Re-
spondent’s welding department consisted of two individ-
uals—Stephen Walters, who, at all times material herein until
April 26, was the manager of the welding shop5 and who
regularly performed production work, and David Reedy, an
employee since September 1986; that, due to production
problems and a large backlog of work in the hard tooling de-
partment in early 1990, work in the welding department was
correspondingly slow and Walters was transferred to the
former department to help reduce the backlog; that, as the
backlog in the hard tooling department lessened, work began
increasing in the welding department; and that, as a result,
in July 1990, according to Jim Zaudke, Respondent was ‘‘in
a bind’’ in the welding department because ‘‘it wasn’t fea-
sible to work all the number of hours necessary’’ to accom-
plish all the work and the decision was made to hire a tem-
porary employee. Thomas E. Wood, a welder who had been
terminated by Beech Aircraft,6 passed a welding test for Re-
spondent, and there is no dispute that, during his preemploy-
ment interview, he was told by Zaudke ‘‘he would be hired
in as a temporary welder’’ for ‘‘around’’ 3 months or
longer—until Respondent overcame a work ‘‘crunch’’ in the
welding department. Subsequent to the interview with
Zaudke, Walters spoke to Wood and formally hired him for
Respondent on July 16, 1990.
Wood worked as a welder for Respondent until March 8,
a period of almost 8 months. While there is no dispute as
the alleged discriminatee’s status as a temporary employee at
the time of his hire, whether or not his status was trans-
formed to that of a permanent employee at some future point
was an issue at the hearing. In this regard, while Jim Zaudke
specifically denied any change in Wood’s status, Wood testi-
fied that, at the time of his hire, Zaudke told him he would
get a raise after 2 months if he became a permanent em-
ployee, and the record establishes that he did receive a 75-
cents-per-hour raise in August 1990.7 Stephen Walters testi-
fied that, as the welding department manager, it became evi-
dent to him that, after the promised 2 or 3 months of Wood’s
employment, there remained a ‘‘need’’ for additional man-
power in the welding shop and that he ‘‘pushed’’ for Wood
to be given full benefits, which would elevate him to full-
time employee status. Accordingly, he had a conversation
with Zaudke at the time Wood was due for a raise, and, after
they discussed Wood’s performance, ‘‘I asked him if we
wouldn’t be able to go ahead and . . . update Wood . . . to
a permanent status. And . . . . Zaudke . . . agreed . . . that
we would probably be able to do it.’’
During cross-examination, Walters placed this conversation
as occurring in January or February 1991, and Zaudke testi-
fied that Wood received a raise of 45 cents per hour on Feb-
ruary 18.8 As to whether Wood attained permanent status at
this time, Zaudke denied any change from his original status
as a temporary employee. With regard to the February pay
increase, Zaudke attributed this to a commitment to Wood,
at the time of his hire, to evaluate him for a raise if he
achieved ‘‘what we expected of him’’ and stated that the
quality of his work remained satisfactory. Zaudke further
conceded that Wood was given the full-time employee health
insurance benefits in February but added that such came after
403AERO METAL FORMS
9 Zaudke pointed out that Wood was not given any other full-time
employee benefits, such as a paid vacation and the right to partici-
pate in Respondent’s 401(k) plan. Later, he conceded that neither of
these was available to Wood in February as each required employ-
ment for a year to be eligible.
10 The record establishes that, from time to time, Respondent sub-
contracted welding work to an individual named Charles Bozone,
who does such subcontract welding work under the name, Produc-
tion Welding. Stephen Walters testified, on direct examination, that
the welding work, which was to be subcontracted to Bozone in
March represented 600-man hours of work at the plant but, during
cross-examination, testified that less than 300-man hours of work
was given to him at first. Walters identified the part as work order
89005, stating that, originally, ‘‘just partial fill-ins’’ were subcon-
tracted to Bozone ‘‘but it could have been completely off loaded de-
pending on how our workload went.’’ Zaudke conceded that welding
on that order was subcontracted to Bozone in February, but stated,
‘‘I did not subcontract any welding work during the month of
March.’’
11 According to Walters, the estimated excess hours totaled ap-
proximately 200.
12 The record discloses that Respondent’s clerical staff includes a
secretary/receptionist and a bookkeeper both of whom have desks in
the outer office. James Zaudke and Tammara Cummins have sepa-
rate offices.
13 Lester, who is also an alleged discriminatee, had been employed
in her bookkeeping capacity by Respondent since January 28, 1991.
Her job duties included maintaining Respondent’s financial records,
calculating the weekly payroll based on the employees’ timecard
records, preparing job cost records also based on the timecard
records, maintaining the accounts payable and receivable records,
and invoicing.
Walters had requested such because Wood ‘‘had a family’’
and that he cautioned Wood, at the time, he would remain
a temporary employee9 Zaudke did not deny the above-de-
scribed conversation with Walters with regard to Wood’s sta-
tus. Finally, as to whether Wood had attained permanent sta-
tus is the testimony of Walters that, in January, ‘‘I’d asked
[Zaudke] if we couldn’t update Tom Wood’s welder . . .
machine . . . to a more up to date version,’’ such as used
by Reedy and himself. Walters estimated the cost at $3000,
‘‘and he had given me the go ahead to solicit bids.’’ While
confirming that he and Walters discussed purchasing a new
welding machine for Wood, Zaudke insisted that such was
done so that his machine could be used as a portable ‘‘main-
tenance welder.’’
There is no contention that Respondent had no need for
Wood’s work as a welder beyond the initial 3 months of his
employment. In this regard, Wood described the level of
welding work, during his entire tenure with Respondent, as
‘‘ consistent. I mean we were busy all the time.’’ Further,
as was the normal practice, at the end of each month, the
three welders worked overtime to complete the work which
was scheduled for completion in that month. This seems to
have been the state of work in February 1991, with the testi-
mony of the alleged discriminatee being uncontroverted that
the welding workload was not less than in previous months
and that the welders worked overtime at the end of the
month in order to complete the scheduled month’s work.
With regard to March, the record establishes that, as was Re-
spondent’s practice, Zaudke met with the department man-
agers, including Stephen Walters, early in that month and
distributed the monthly listing of work, which was scheduled
for completion that month. The list included welding work,
and, in the afternoon after the managerial meeting, as was
their normal practice, Walters met with Zaudke to discuss the
anticipated welding man-hour requirements for completion of
the scheduled March work. According to Walters, who was
uncontroverted as to what was discussed at this meeting,
‘‘we went over just briefly what I had determined the hours
. . . would be needed to meet the monthly schedule and
we’d talked about subcontracting some of the work. . . . to
Charlie Bozone to be welded.’’10 Walters further stated that
his reference was always to three individuals and that the
discussion concerned the specific jobs, to which each would
be assigned, and the estimated time needed for each job.
Walters added that, as the volume of work seemed so great,
he recommended ‘‘that we probably should move . . . some
of March’s work out into April,’’ and Zaudke said he would
consider that.11
The record reveals that Thomas Wood had been a member
of the Union while employed by Beech Aircraft; that, con-
tinuously while working for Respondent, he wore clothing,
bearing the Union’s insignia, and had union emblems pasted
on his lunchbox; and that he was the only employee who did
so. The record further reveals that, in early February, Re-
spondent’s employees began considering the possibility of
seeking representation by the Union; that, given Wood’s
open espousal of the Union at the plant, he became a leader
of the nascent organizing campaign; that a delegation of em-
ployees, including Wood, visited the Union’s office to seek
aid in organizing the plant; and that Wood spoke to employ-
ees about the Union in aid of the organizing campaign. Fur-
ther, there is no dispute that Respondent was aware of
Wood’s union sympathies. Thus, not only, as mentioned
above, was his support for the Union unconcealed but also
at the plant’s Christmas party, in December 1990, he en-
gaged in a conversation with James Zaudke regarding the
merits of union representation.
The alleged discriminatee was laid off on March 8, 1991.
On that day, at approximately noon, a registered letter enve-
lope, containing a demand for recognition letter from the
Union and another letter from the Union, informing Re-
spondent of the aforementioned organizing campaign and of
the employees’ protected status under Sections 7 and 8(a)(1)
and (3) of the Act, were delivered to Respondent’s office12
and received by Tammara Cummins, who immediately
opened the envelope and read both letters. The
secretary/receptionist, Janet Wallace, and the bookkeeper,
Janet Lester,13 returned from lunch at approximately 12:30
p.m., and, according to alleged discriminatee Lester, they
found Cummins sitting in the outer office, holding the two
letters. The latter read the demand for recognition letter out
loud, said it would ‘‘greatly’’ upset Zaudke and make him
‘‘hell to work with,’’ and then ‘‘asked if Janet Wallace or
myself had heard any of the guys wanting to form a union.’’
Lester continued, testifying that both women said, ‘‘No,’’
and Cummins said she could not understand why the em-
ployees would want a union as Zaudke would loan them
money if needed. Lester agreed that such was a fact but
pointed out that he charged interest on such loans. There-
upon, Cummins said she suspected ‘‘a couple’’ of the em-
ployees as being ‘‘in charge’’ of the organizing and named
Thomas Wood. Lester said she should not jump to any con-
clusions, and the conversation ended with Cummins saying
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
14 Cummins did admit that, prior to March 8, she had heard that
Wood’s father was an official with the Union at Beech Aircraft.
she was going to ask the shipping and receiving manager,
Wanda Fleming, if she had heard anything about a union.
Tammara Cummins admitted that she was reading the
Union’s letters in the outer office when Lester and Wallace
returned from lunch. ‘‘I had the letter[s] in my hand and I
asked the ladies if they knew anything about union’s [sic] or
maybe a union letter coming or anything like that.’’ Both de-
nied such knowledge, and Lester asked to see the letter and
read it. Cummins asked what she thought, and Lester said it
looked like the employees were organizing. According to
Cummins, she said she did not know what the letter meant,
and both Lester and Wallace again denied any involvement
with it. Cummins denied saying there would be hell to pay
when Zaudke became aware of the letters and denied any
knowledge, prior to March 8, of Thomas Wood’s involve-
ment with the Union.14
Shortly after the foregoing conversation with Cummins,
Janet Lester testified, James Zaudke returned to the plant,
and he and Cummins met in the latter’s office. According to
Lester, she overheard Cummins and Zaudke discussing the
Union’s demand for recognition letter, with Zaudke saying
that he would refuse to recognize the Union. Moments later,
Zaudke left in order to pick up his daughter, and Cummins
came out of her office. Lester asked if Zaudke had calmed
down; Cummins asked her to come into her office; and, in-
side Cummins’ office, the latter said, ‘‘That Mr. Zaudke was
going to layoff Tom Wood because he was only hired on a
temporary basis.’’ Lester responded that temporary normally
meant 60 days, not the many months that Wood had worked,
‘‘and she made reference that Tom’s dad is some big shot
in the Union at Boeing.’’ Moments later, having returned to
the plant, Zaudke entered Cummins’ office. ‘‘And I said, if
you’re going to layoff Tom Wood, he’s going to have to be
the first one you rehire. You can’t hire someone else in the
shop and put them over into . . . welding.’’ Zaudke re-
sponded that Lester did not know what she was talking about
and that such was not the law in Kansas. Then, ‘‘it was said
by Tammy and agreed by Mr. Zaudke that I would say what
they wanted me to say about when they received the letter
and all that. And I stated to both of them that I would not
lie.’’ The conversation ended, and Zaudke left the office.
While neither specifically denied demanding that Lester
agree to fabricate her account as to when the Union’s de-
mand for recognition letter arrived at Respondent’s facility
that Friday, the recollections of Zaudke and Cummins are
quite different from that of the alleged discriminatee. James
Zaudke testified that ‘‘I was in and out of the office a great
deal that day. . . . and then that afternoon I had told Tammy
Cummins that I was going to have to lay Tom Wood off.’’
Stating that this conversation occurred ‘‘late in the afternoon
. . . . around two o’clock’’ in Cummins’ office with Janet
Lester present, Respondent’s resident continued, stating, ‘‘I
told her that I was going to lay Tom Wood off and
[Cummins] said, before you do that, I’ve got a letter that you
ought to read, and I just stated, I don’t have time right
now.’’ Then, ‘‘Lester made a comment about, something
about the Union and that if I laid him off . . . he would
have to be the first person rehired or something to that ef-
fect. I told her that was not true. That Kansas was a right
to work state.’’ Zaudke insisted that he did not read the
Union’s demand letter during this meeting as ‘‘I had more
pressing matters on my mind . . . laying Tom Wood off’’
but conceded that the comments of Cummins and Lester
were an indication that the letter was from the Union. Asked
when, that day, he did became aware of the contents of the
letters from the Union, Zaudke stated, ‘‘I did not actually be-
come aware . . . and actually read [them] until the end of
that day.’’
Tammara Cummins testified that, after sharing the contents
of the two union letters with Lester and Wallace, she went
into her office. According to her, Zaudke returned to the
plant at approximately 1 p.m., and she went to his office
with the letters but had no chance to show them to him, for
Zaudke left ‘‘quickly’’ as ‘‘he had an errand to run,’’ and
she did not want to stop him. Zaudke returned half an hour
later, and, again, Cummins had no chance to show him the
demand for recognition letter from the Union as ‘‘he had to
pick up his daughter and he was late.’’ Finally, at approxi-
mately 3:15 p.m., Zaudke returned to the plant, and, without
Lester, Cummins approached and asked if he had a minute.
Zaudke said, ‘‘That he was going to lay off Mr. Wood and
I told him at that time that I thought he should read a letter
that I had before he did that. . . . He said that he would take
a look at it when he returned. He said he was on his way
. . . to get [Wood and Walters]’’ and left to go out into the
shop. Cummins added that she does not know when Zaudke
read the Union’s demand for recognition letter but that she
did discuss it with him after 4 p.m.
Respondent’s president Zaudke met with alleged
discriminatee Wood and Welding Department Manager Wal-
ters in his office shortly after 3 p.m., and there is no dispute
as to what was said. Zaudke began, stating that he was going
to have to layoff Wood due to a shortage of work and cited
his status as a temporary employee. Walters protested, stating
that Respondent had several high man-hour jobs in the shop
and that he had just given Zaudke a 200-hour estimate above
what they could complete with the available manpower in
March, and asked if Wood could, at least, finish the month.
Zaudke said Wood could not complete the month and that
‘‘he was looking in the projection to the next couple of
months and there wasn’t going to be enough work to support
three welders and he had to look out for his senior welders
. . . .’’ Walters then asked about severance pay, and Zaudke
said, ‘‘No.’’ Then, Zaudke asked how Wood would pay off
two loans, and the employee said he would try to pay $25
per week; Zaudke agreed but said he would keep Wood’s
tools as security. The meeting ended at that point.
Janet Lester testified that, during the week following her
refusal to comply with the demand of Zaudke and Cummins
that she agree fabricate her account as to exactly when Re-
spondent received the Union’s demand for recognition letter,
Zaudke’s and Cummins’ attitude towards her became ‘‘very
hostile.’’ Thus, prior to March 8, Zaudke would say ‘‘good
morning’’ to her on a regular basis and, if he wanted to
speak to her, would come into the outer office and ask to
speak to her in his office. However, according to Lester, dur-
ing the week of March 11 through 15, Zaudke never said
‘‘good morning’’ to her and would yell from his office if he
wanted to speak to her. Also, Lester testified, Cummins
‘‘would only speak to me when she had to concerning
work,’’ and the atmosphere was such that Janet Wallace re-
405AERO METAL FORMS
15 Zaudke admitted that he mentioned to Lester an earlier con-
versation with the Accountant Marsh, who expressed a concern for
her ability to perform bookkeeping and accounting work. On this
point, Zaudke was contradicted by Marsh. Thus, while appearing as
a witness for Respondent, Marsh was asked if he had, in fact, given
Zaudke his opinion as to Lester’s competency, and Marsh replied,
‘‘No.’’
16 There is no dispute that, prior to Thomas Wood, Respondent
had never laid off an employee.
17 While Zaudke failed to inform or consult Walters as to the lay-
off of Wood and did not rely on Walters to announce the layoff to
Wood, the record establishes that, with regard to the layoff of em-
ployee, Kenneth Southworth, from the plaster pattern department on
March 25, Zaudke consulted with the department manager, Gregory
King, prior to the layoff and permitted King to inform Southworth
of the employment action.
18 Steven Walters testified that Wood had only completed about
half of a welding assignment, which, Walters estimated, required an-
other couple of months to complete.
19 Zaudke rejected the hiring of a temporary welder, or recalling
Thomas Wood, in order to help reduce the welding backlog as ‘‘a
temporary person wouldn’t be a solution in that I was always of the
belief that we would be able to hire a weld shop manager in the
near future.’’
marked to her that there was much ‘‘tension’’ in the office.
Finally, on Friday, March 15, at approximately 3 p.m., Lester
was asked to attend a meeting with Zaudke and Cummins in
the former’s office. There is no dispute as to what was said.
Thus, according to Lester, Zaudke, who had a stack of time-
cards on his desk, ‘‘said that he was going to have to let me
go because I was making too many errors . . . on the time
cards.’’ Lester asked why these had never been brought to
her attention but received no response. She then asked why,
if she made so many mistakes, the payroll had been coming
out correctly; again there was no response. Thereupon,
Zaudke said that Respondent’s accountant, Ron Marsh, had
informed him that she had no experience in profit and loss
and general ledger bookkeeping. Lester responded that, if
such was the case, how had she been able to correct a recent
bookkeeping mistake. There was no response, and, after say-
ing she was a professional, Lester requested her final check
and left. Zaudke did not dispute Lester’s version of this con-
versation, adding that he offered to show Lester all her time-
card errors but she refused.15
Turning to the layoff of Thomas Wood, James Zaudke tes-
tified that he made the determination that Respondent no
longer required Wood’s services ‘‘at the end of the the third
week of February.’’16 According to the witness, at the time,
he was going through Respondent’s present contractual com-
mitments and discovered that some duct assembly work
would not be completed by the scheduled delivery date, and
this lead him to closely examine Respondent’s entire contrac-
tual backlog as ‘‘we had to determine when I could fit it in
to the work that we had . . . . And in so doing, I found that
the weld shop work was greatly diminished from what my
opinion of the . . . work had been prior to that point in
time.’’ Apparently, the foregoing convinced Zaudke that Re-
spondent would need just two welders to perform all future
welding work, and Zaudke gave no thought to laying off ei-
ther Stephen Walters or David Reedy as ‘‘they were our long
term permanent employees and Mr. Wood was only a tem-
porary employee.’’ Notwithstanding Zaudke’s assertion that,
by the end of the third week in February, he had decided to
layoff the alleged discriminatee, there is no dispute that,
prior to March 8, he never communicated the intent to the
welding department manager, Steven Walters—not even dur-
ing their meeting in early March at which time Walters pre-
sented Zaudke with the department’s estimated man-hour re-
quirements for March, which included hours for Wood.17
With regard to the amount of welding work in Respond-
ent’s plant in March and April, the third welding department
employee, David Reedy, who remained an employee of Re-
spondent as of the date of the instant hearing, testified that,
as of March 8, ‘‘we had a lot of work’’ in the weld shop;
that, as a consequence of the layoff of Wood, he was re-
quired to work on the former’s work as well as his own;18
and that, in mid-April, it remained ‘‘very busy’’ in the weld-
ing department. Then, at the end of April, Department Man-
ager Walters quit, and, as a consequence, Respondent had
just one employee to perform welding work, and David
Reedy testified that not only was he unable to perform the
required volume of work but also work never decreased to
permit him to catch up. As a direct consequence of the lack
of welders and the ever increasing level of work, over the
next 4 months, based on their scheduled completion dates,
Respondent became delinquent on 38 or 48 percent, of its
existing contracts. In order to remedy the ever-worsening
backlog of welding work over these months, Respondent rec-
ognized the need for additional manpower to perform weld-
ing work and, to this end, continually attempted to hire a
new welding department manager; however, according to
James Zaudke, no fewer than seven applicants for the posi-
tion failed welding tests and not until August was a replace-
ment for Walters hired. Zaudke rejected any suggestion that,
in the above circumstances, hiring a temporary welder would
have alleviated the aforementioned difficulty.19
As evidence, corroborating Zaudke’s assertion that, by the
end of the third week in February, he was able to ascertain
that work in the welding department was decreasing to the
point that he no longer required the services of alleged
discriminatee Wood, Respondent offered into evidence sum-
maries of the contracts, which required welding work, re-
ceived by Respondent in 1990 and 1991 along with the esti-
mated welding man-hours required for completion. While
these show that Respondent’s 1990 contracts required 1672
man-hours for completion and the 1991 contracts an esti-
mated 877 man-hours, the corroborative worth of said docu-
ments is problematical at best. Thus, the 1991 information
was compiled within days of the instant hearing, and there
is no indication as to what, if any, records, Zaudke utilized,
in February, to determine welding work would begin to de-
crease. Further, while 1991 contract welding hours, indeed,
may have decreased from the 1990 level, Zaudke admitted
that not all the 1990 contractual work had been completed
by February 1991, that some 1989 contract welding work re-
mained unfinished, and that Respondent was delinquent on
some of the 1990 work. Moreover, the fact that Respondent
had fewer estimated contractual welding hours in 1991 seems
to have been as a direct consequence of its inordinately high
delinquency rate and great backlog of work during the spring
and summer months and a resulting decision to limit its bid-
ding on new work. In this regard, while Zaudke assertedly
could not recall telling such to anyone, Neva Reid, an em-
ployee of the Department of Defense in Defense Contract
Management Area Operations, testified that, in July or Au-
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 The record establishes that the production employees’ timecards
served two purposes. First, they were utilized to determine the em-
ployees’ daily and weekly hours of work so that Respondent could
compute its payroll. Next, employees were required to note each job
upon which they were working each quarter hour so that Respondent
could maintain accurate job cost records, which was important as
each job had its own budget.
21 Apparently, timecard mistakes could be of two types—incor-
rectly adding hours or noting improper job codes. Zaudke stated that
Lester’s mistakes were of both types. As support for Zaudke’s testi-
mony that Lester’s timecard errors were increasing rather than de-
creasing over the course of her employment, R. Exh. 8 is a summary
of her weekly timecard errors from the start of her employment. This
document shows that in the initial 3 weeks of employment, Lester
made none, then two and then four errors and that, during the final
4 weeks of her job tenure, she made 15 errors, then 2 errors, then
14 errors, and, in her final week, she made 18 errors. There is no
evidence as to which of the foregoing are computation rather than
job coding errors. Finally, Lester did not dispute any of the fore-
going figures.
22 Lester testified that, during her first 2 weeks, Cummins per-
formed most of the timecard calculations; that they both did the
cards in her third week, and that, for the final 4 weeks, she did them
herself, with Cummins checking them for accuracy.
23 Zaudke begrudgingly admitted that he did, in fact, praise
Lester’s work—‘‘Oh, I may have, the first week or so. . . . I wanted
to establish a professional rapport with her.’’
gust, faced with the foregoing situation, Zaudke ‘‘said he
was bidding on contracts that . . . he had tooling for and
similar items. That he wasn’t bidding on any new type items
that he would have to develop tooling for. . . . [H]e just said
he was slowing down on his bidding.’’ Finally, it should be
noted that the foregoing could not have been anticipated by
Zaudke in the third week of February as, by his own admis-
sion, such was caused by the lack of manpower in the weld-
ing department after Steven Walters resigned and as Walters
did not leave Respondent’s employ until the end of April.
With regard to the discharge of Janet Lester, Zaudke testi-
fied that such resulted from excessive errors in her computa-
tion of the employees’ timecard records.20 According to him,
The time card errors would not cost the company a lot
of money but what was evident was that the errors were
increasing in quantity. . . . And for that reason, I made
the determination that it wasn’t getting any better, it
was getting worse. And that’s the reason I made the de-
termination to go ahead and let her go.21
He added that he reached the above decision on Friday,
March 15, the day he terminated Lester. On this point,
Tammara Cummins initially contradicted Zaudke, stating he
made the decision to terminate Lester on ‘‘the Friday before
we terminated her’’—March 8. Moments later, she changed
her testimony, saying, ‘‘Mr. Zaudke made that determination,
and it was made that next week, after payroll had been
issued.’’ Elaborating, Cummins said the actual decision to
terminate Lester was made on Wednesday, March 13 but not
communicated to her until the following Friday. Finally,
changing her testimony yet again to corroborate that of
Zaudke, Cummins averred, ‘‘We had discussed [the decision
to discharge Lester] Wednesday and actually made the deci-
sion Friday, I guess.’’ Compounding the uncertainty caused
by the foregoing was her absolute lack of recall as to when
or where she spoke to Zaudke on March 15; her only recol-
lection was that he ‘‘said that we were going to go ahead
and let . . . Lester go.’’ Finally, Cummins testified that the
precipitating cause for the discharge was Lester’s payroll per-
formance on Monday, March 11—‘‘There was a large
amount of errors in that payroll.’’
Specifically as to the timecard errors made by Janet Les-
ter, there does not seem to be any dispute that, in fact, she
made computation and job notation errors; rather, what is in
dispute is Respondent’s reaction to them over the course of
the alleged discriminatee’s employment. In this regard, Les-
ter testified that, each Monday, Tammara Cummins would
discuss any timecard errors with her but never in the form
of criticism or discipline—she ‘‘never . . . criticized me.
She would just show me that this should have been a dif-
ferent number and usually not big deal.’’22 While conceding
that her errors could have lead to over or underpayment of
wages or improper allocation of job costs, Lester maintained
that Cummins never either mentioned possible discipline or
the need for her to improve her accuracy. In fact, according
to Lester, ‘‘I was praised constantly by Mr. Zaudke and
Tammy in the good job that I was doing and thanking me
for doing such a good job in catching things up.’’23
Tammara Cummins corroborated Lester that, each Monday,
she would point out time card errors to the employee; ‘‘I cir-
cled where the error occurred, and corrected it, and showed
her what she had done and how I corrected it.’’ As to wheth-
er she ever mentioned to Lester the necessity for improving
her performance, Cummins disputed Lester, stating, ‘‘I would
say probably the third or fourth week of her employment as
the errors began to grow . . . . I would tell her . . . . that
we need to really watch our times more closely and catch
some of these errors that are being made,’’ asked about
warnings to Lester, Cummins replied, ‘‘I assumed I was giv-
ing her warnings each week I pointed her errors out to her.’’
Finally, Cummins conceded that she praised Lester’s per-
formance ‘‘a few times’’ when she did something well.
B. Analysis
A determination as to the legality of the March 8 layoff
of employee Thomas Wood is governed by the traditional
precepts of Board law in 8(a)(1) and (3) discharge cases, as
modified by the Board’s decision in Wright Line, 251 NLRB
1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied
453 U.S. 989 (1982), approved in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983). Thus, in order to
establish a prima facie violation of Section 8(a)(1) and (3)
of the Act, the General Counsel must establish (1) that the
alleged discriminatee engaged in union activities; (2) that the
employer had knowledge of such; (3) that the employer’s ac-
tions were motivated by union animus; and (4) that the dis-
charges had the effect of encouraging or discouraging mem-
bership in a labor organization. WMUR-TV, 253 NLRB 697,
703 (1983). Further, the General Counsel has the burden of
proving the aforementioned by a preponderance of the evi-
dence. Gonic Mfg. Co., 141 NLRB 209 (1963). While the
foregoing analysis was easily applied in cases in which the
employer’s motivation was straightforward, conceptual prob-
lems arose in cases in which the record evidence disclosed
the presence of both a lawful and an unlawful cause for the
407AERO METAL FORMS
24 Although Respondent’s employment record card for Wood does
not indicate a change in his work status, Steven Walters spoke to
Zaudke on that point shortly after Wood received a wage increase
in February and believed that the latter would change Wood’s status.
Moreover, it is rather difficult to believe that Zaudke would have
permitted Walters to solicit bids for an updated welding machine for
Wood if a change in his status to that of a full-time employee was
not contemplated. Finally, whether or not Wood’s status was ever
changed is beside the point, for, even if temporary, Wood remained
an employee entitled to the protection of the Act. Cf. North Vernon
Forge, 278 NLRB 708 (1986).
discharge. In order to resolve this ambiguity, in Wright Line,
supra, the Board established the following causation test in
all 8(a)(1) and (3) cases in which motivation is the issue.
First, we shall require that the General Counsel make
a prima facie showing sufficient to support the infer-
ence that protected conduct was a ‘‘motivating factor’’
in the employer’s decision. Once this is established, the
burden will shift to the employer to demonstrate that
the same action would have taken place even in the ab-
sence of the protected conduct. [Id. at 1089.]
Two points are relevant to the foregoing analytical approach.
First, in concluding that the General Counsel has established
a prima facie violation of the Act, the Board will not ‘‘quan-
titatively analyze’’ the effect of the unlawful motive. ‘‘The
existence of such is sufficient to make a discharge a violation
of the Act. Id. at 1089 fn. 14. Second, pretextual discharge
cases should be viewed as those in which ‘‘the defense of
business justification is wholly without merit’’ (id. at 1084
fn. 5), and the ‘‘burden shifting’’ analysis of Wright Line
need not be utilized. Arthur Anderson & Co., 291 NLRB 39
(1989). The instant layoff of Thomas Wood should be
viewed as the latter type and, thus, patently violative of Sec-
tion 8(a)(1) and (3) of the Act.
At the outset, of course, in order to properly evaluate the
various factual issues involved in the layoff of Wood, an as-
sessment as to the testimonial credibility of the witnesses is
essential. In this regard, Steven Walters, the former welding
department manager, appeared to be testifying in an entirely
truthful and straightforward manner and impressed me as
being a most reliable witness. Likewise, the other alleged
discriminatee, Janet Lester, seemed to be testifying in a frank
and candid manner with regard to her recollection of the
events of March 8 and shall be credited by me. Further,
James Wood and David Reedy, who remains employed by
Respondent as a welder and was, therefore, testifying against
the pecuniary interests of his employer, each appeared to be
an honest witness and, as with Walters and Lester, shall be
relied on for his account of the events herein. In contrast,
Respondent’s president, James Zaudke, appeared to be an ut-
terly disingenuous witness, one for whom truth must serve
a business purpose. In particular, I found absolutely incred-
ible his asserted failure to recall comments, made to Federal
Government agents no more than 3 months prior to the start
of the hearing in these matters, concerning Respondent’s
contract delinquency problems and future contract bidding
strategy. Similarly, Tammara Cummins appeared to be a
most obsequious witness, testifying in a manner calculated to
buttress the position of Respondent and without regard for
the truth. The mendacious nature of her testimony was never
more apparent than in her efforts to conform her testimony
to that of Zaudke regarding the timing of the decision to ter-
minate Lester. Accordingly, unless corroborated by credible
witnesses, neither the testimony of Zaudke nor that of
Cummins shall be relied on by me in determining what actu-
ally occurred herein.
Based on the testimony of the credited witnesses, and the
record as a whole, findings are warranted that, Thomas
Wood was hired by Respondent in July 1990 on a temporary
basis; that Wood was kept consistently busy performing
welding work in the plant’s welding department and the
workload had not decreased in February; that, in mid-Feb-
ruary, Wood’s employment status was seemingly changed to
that of a full-time employee;24 that, in early March, a surfeit
of welding work existed for the three welders in the welding
department sufficient to require Welding Department Man-
ager Walters to recommend to Respondent’s president
Zaudke that 200 previously scheduled man-hours of work be
rescheduled for April; that Wood had been a member of the
Union at his former employer and remained an open advo-
cate of the Union—a fact known to Respondent; and that, in
February, Wood became a leader of Respondent’s employ-
ees’ nascent organizing campaign on behalf of the Union.
Findings are further warranted that, on March 8, at approxi-
mately noontime, Tammara Cummins, who is in charge of
Respondent’s office, opened a registered letter and read the
Union’s demand for recognition letter, and, when the book-
keeper, Janet Lester, and the receptionist/secretary, Janet
Wallace, returned to the office from lunch, Cummins read
the demand letter to them, said it would ‘‘greatly’’ upset
Zaudke and make him ‘‘hell to work with,’’ asked if either
women ‘‘had heard any of the guys wanting to form a
union,’’ said she suspected ‘‘a couple’’ of the employees as
being ‘‘in charge,’’ and named Thomas Wood as one of said
suspected organizers. It is further found that, shortly there-
after, Zaudke returned to the office; that Zaudke and
Cummins discussed the demand for recognition and the
former said he would refuse to recognize the Union; that
Lester was summoned to Cummins’ office and Cummins
said that Zaudke had decided to layoff Wood as he was a
‘‘temporary’’ employee and, later, that his father was a ‘‘big
shot’’ in the Union; and that, after Zaudke entered Cummins’
office, Cummins, with Zaudke’s concurrence, said, ‘‘That I
would say what they wanted me to say about when they re-
ceived the [demand for recognition letter]’’; and that Lester
refused to accede to said demand. At approximately 3:30 that
afternoon, Wood was precipitously laid off by Respondent.
Based on the foregoing factual findings, the conclusion is
mandated that the General Counsel has established a prima
facie violation of the Act with regard to the layoff of Wood.
Thus, the foregoing factual matrix reveals that not only was
the alleged discriminatee an overt advocate for the Union and
a leader of the Union’s organizing campaign amongst Re-
spondent’s employees but also Respondent was keenly aware
of Wood’s union adherence. Further, said matrix warrants the
conclusions that unlawful animus was a motivating factor un-
derlying Respondent’s conduct in effectuating the layoff and
that said act was nothing more than a ‘‘knee-jerk’’ response
to the organizing campaign and the Union’s demand for rec-
ognition. Buttressing these conclusions, of course, is the
compelling fact that Wood was laid off no more than 3 hours
after Cummins disclosed the existence of the Union’s de-
408 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mand for recognition letter, said that Zaudke would be upset
by such, and made known her suspicion that Wood was one
of the two employees ‘‘in charge’’ of the campaign and no
more than 2 hours after Zaudke was informed of the demand
for recognition letter and Cummins stated Wood was being
laid off because he was a temporary employee said his father
was a ‘‘big shot’’ in the Union. Moreover, inasmuch as Les-
ter was not a known union adherent or even a member of
the bargaining unit, whose representation was sought by the
Union and as Cummins was clearly seeking information as
to the leading union adherents amongst the plant employees,
the latter’s interrogation of Cummins, as to which employees
supported a union, must be viewed as violative of Section
8(a)(1) of the Act. It has been a long held tenet of the Board,
in 8(a)(1) and (3) discharge cases ‘‘that the timing of the
[employer’s conduct] is strongly indicative of animus.’’ Elec-
tronic Data Systems Corp., 305 NLRB 219 (1991); Struc-
tural Composites Industries, 304 NLRB 729 (1991); Jamar
Coal Co., 293 NLRB 1009 (1989). Herein, given Respond-
ent’s unlawful interrogation and stated suspicion that Wood
was the employee ‘‘in charge’’ of the organizing campaign
and the record as a whole, I find no merit to counsel for Re-
spondent’s contention that the timing of the layoff of Wood
was merely suggestive, and not probative, of unlawful ani-
mus. Accordingly, the conclusion is warranted, if not man-
dated, that a prima facie violation of the Act has been estab-
lished with regard to the layoff of Thomas Wood.
The conclusion that the foregoing accurately reflects the
true version of events herein is bolstered by the sham nature
of Respondent’s defense to the unfair labor practice allega-
tion. Thus, the key element of said defense is Zaudke’s as-
sertion that, at the end of the third week in February, after
reviewing Respondent’s contractual backlog and the amount
of work in the welding department, he decided that, in order
to meet Respondent’s future needs, only two of the three
welders would be needed and that the one to be laid off
would be the one with the least seniority—Thomas Wood.
However, not only did I find Zaudke to have been a most
disingenuous witness and his testimony not worthy of belief
but also this version of events cannot be reconciled with
what actually occurred herein. Thus, it was undisputed, and
defies belief, that, prior to March 8, Respondent’s president
never communicated his intent to layoff a welding depart-
ment employee to the individual in charge of the department,
Steven Walters—not even when the two met in early March
and discussed Walters’ estimates of that month’s man-hour
requirements, a calculation which included hours for Thomas
Wood. Surely, Zaudke would have instructed Walters to ad-
just the work assignments to compensate for the loss of
Wood. Moreover, Zaudke’s asserted act of ignoring Walters,
with regard to the layoff of Wood, must be contrasted to his
conduct in the layoff of Kenneth Southworth as Zaudke not
only consulted with the former’s supervisor prior to the lay-
off but permitted him to inform Southworth of his layoff.
The fact that Zaudke said nothing to Walters warrants the in-
ferences, to which I adhere, that Respondent’s president
failed to consult with Walters, prior to March 8, inasmuch
as no layoff was contemplated and that the layoff of Wood
was, indeed, a spontaneous reaction, triggered by the Union’s
demand for recognition.
Further establishing that Zaudke’s testimony, as to his de-
cision to layoff Wood, was dissembled is the credible record
evidence regarding the amount of uncompleted welding work
during March and April. Thus, while Zaudke claimed that
welding work had diminished from the prior months’ levels,
the record establishes that, in March, there were in excess of
200 man-hours of work, which Department Manager Walters
estimated could not be completed by the three welders and
which, he suggested, should be rescheduled to April. Also,
according to the credible testimony of David Reedy, there
was ‘‘a lot of work’’ in the welding department in March,
and, by mid-April, it remained ‘‘very busy.’’ Moreover,
Zaudke himself admitted that, at the time he allegedly de-
cided that not enough welding work remained to justify three
welders, some 1989 and 1990 contractual welding work re-
mained uncompleted and that Respondent was delinquent on
such work. Finally, while the record does disclose that,
throughout 1991, Respondent had fewer estimated contractual
welding hours than in past years, such seems to have been,
as claimed by Zaudke, the result of a slowdown in bidding
on new work caused by the absence of Welding Manager
Walters, who resigned his job in late April—a fact which
Zaudke could not have anticipated in the third week of Feb-
ruary. Accordingly, based on the foregoing, it is evident that
the defense to the layoff of Thomas Wood is nothing more
than a fabrication, that his layoff was nothing less than Re-
spondent’s ‘‘kneejerk’’ reaction to the Union’s demand for
recognition, and that, in the circumstances, Respondent vio-
lated Section 8(a)(1) and (3) of the Act. Electromedics, Inc.,
299 NLRB 928 (1990).
I turn next to the discharge of Janet Lester and note that
counsel for the General Counsel’s theory, underlying the
complaint allegation, that she was discriminated against in
violation of Section 8(a)(1) and (3) of the Act because she
‘‘joined, supported, or assisted the Union,’’ is a novel one.
Citing for support the decisions finding unlawful the termi-
nation of statutory supervisors for refusing to commit unfair
labor practices, counsel argues that Lester was unlawfully
discharged on March 15 for having refused to participate in
a ‘‘cover-up,’’ regarding the layoff of Wood, by fabricating
when Respondent received the Union’s demand for recogni-
tion letter. In postulating her theory, counsel has not ex-
plained how said theory conforms to the tenets of Section
8(a)(3) of the Act in that the necessary factors required for
finding violations of this section of the Act, including partici-
pation in union activities or suspicion of such participation,
are not present in the discharge of Lester. Moreover, neither
counsel for Respondent nor me have been able to locate any
decisions of the Board, finding violations of Section 8(a)(1)
and (3) of the Act utilizing the postulated theory. However,
just as in the cited cases involving statutory supervisors who
are discharged for refusing to commit unfair labor practices,
including Phoenix Newspapers, 294 NLRB 47 (1989), and
Country Boy Markets, 283 NLRB 122 (1987), there can be
no doubt that the termination of an employee, who refuses
to participate in an unfair labor practice involving fellow em-
ployees, who are engaged in protected concerted activities,
would have a coercive effect and seriously interfere with the
employees’ Section 7 rights. In these circumstances, contrary
to counsel for the General Counsel, given the theory under-
lying the complaint allegation, regarding the discharge of
Lester, I shall consider only whether the discharge of Lester
was violative of Section 8(a)(1) of the Act.
409AERO METAL FORMS
25 I agree with counsel for the General Counsel that Respondent’s
demand, that Lester fabricate in order to conceal the exact time Re-
spondent received the Union’s demand for recognition letter, was co-
ercive and violative of Sec. 8(a)(1) of the Act. However, I do not
believe that Cummins’ statement, as to her belief that Zaudke would
be upset on learning of the Union’s demand for recognition, was co-
ercive; such seems more a statement of opinion and not unreason-
able. Further, Cummins’ statements that Wood was laid off as he
was a temporary employee and that his father was a ‘‘big shot’’ in
the Union were not so closely connected so as to be coercive; how-
ever, I do believe such demonstrates Respondent’ animus towards
Wood.
26 In finding that the General Counsel has not established the exist-
ence of unlawful animus, I have considered the inconsistent testi-
mony of Tammara Cummins with regard to the timing of the deci-
sion to terminate Lester and the testimony of James Zaudke, contra-
dicted by the accountant Marsh. While inconsistent and contradictory
testimony detracts from Respondent’s defense, such does not, with-
out more, establish the existence of unlawful motivation, upon which
the General Counsel bears the burden of proof. In this regard, I note
that, in determining whether the General Counsel has established a
prime facie case for unlawful motivation, ‘‘the test is not whether
the Respondent has proffered a lawful defense . . . but whether,
viewed in isolation, the General Counsel’s evidence supports an in-
ference that protected activity was the motivating factor . . . .’’
Cine Enterprises, 301 NLRB 446, 447 (1991); Bali Blinds Midwest,
292 NLRB 243 fn. 2 (1988).
While counsel for the General Counsel contends that Les-
ter was discharged for refusing to participate in fabricating
when Respondent received the Union’s demand for recogni-
tion letter, counsel for Respondent argues that she was dis-
charged for poor work performance during her probation pe-
riod. Just as in the consideration of the layoff of Thomas
Wood, when motivation for discharge is at issue in cases in-
volving alleged violations of Section 8(a)(1) of the Act, a
Wright Line, supra, analysis must be undertaken, under
which the General Counsel must establish a prima facie
showing sufficient to support the inference that protected ac-
tivity by employees was a motivating factor in the discharge
decision, and, then, the employer has the burden of showing
that the employee would have been discharged absent the
protected activity. Herein, based on the credited testimony of
Janet Lester, I find that, on March 8, in Respondent’s office
during the afternoon, Tammara Cummins informed Lester of
the Union’s demand for recognition letter and named Thomas
Wood as being ‘‘in charge’’ of the organizing; that, subse-
quently, Cummins informed James Zaudke of the letter, and
Zaudke said he would refuse to recognize the Union; that
Cummins then told Lester that Wood was going to be laid
off and referred to the latter’s father as being an official with
the Union; and that, later, in Cummins’ office, Cummins,
with Zaudke’s concurrence, demanded that Lester follow
their instructions abut what to say as to when Respondent re-
ceived the Union’s demand for recognition letter; that Lester
said that she would refuse to lie for Respondent; and that,
1 week later, she was discharged ostensibly for her lack of
accuracy in keeping the timecard records.25
With regard to the issue of animus, there is, of course, no
comment by either Zaudke or Cummins to establish that Les-
ter was, in fact, terminated for her refusal to go along with
a coverup of the actual motivation for the layoff of Wood.
While it is clear that such direct evidence of intent is not re-
quired and that unlawful animus may be inferred from the
record as a whole (Country Boy Markets, supra at 127), one
searches in vein for any such record evidence herein. Thus,
unlike with the unlawful layoff of Wood, the timing of the
discharge, coming 1 week after Lester’s refusal to cooperate
in a coverup, rather than contributing to a finding of unlaw-
ful animus, detracts from such. On this point, inasmuch as
Lester failed to controvert evidence pertaining to the inordi-
nate number of errors in her timecard calculations on Mon-
day, March 11, it can hardly be said that Respondent waited
a week in order to perfect an unlawful discharge. Moreover,
unlike in Country Boy Markets, supra, wherein the respond-
ent made continual demands that the supervisor engage in an
unfair labor practice only to be met with repeated refusals to
do so, not only did Cummins state her demand on just one
occasion and never repeated it but also nothing was said to
Lester when she refused to accede to Respondent’s demand.
In urging the finding of the existence of unlawful animus,
counsel for the General Counsel points to what she terms ‘‘a
marked change’’ in the attitudes of Zaudke and Cummins to-
wards Lester during the week of March 11 through 15—after
Lester refused to participate in a coverup. However, to at-
tribute this to Lester’s conduct is to ignore external pres-
sures, which might also have resulted in changes in Zaudke’s
and Cummins’ attitudes toward the office staff. Thus, a labor
organization was now seeking to represent Respondent’s
plant employees, and Respondent had just terminated an em-
ployee, who appeared to be a leader of the organizing effort.
It would, therefore, be speculative to attribute any attitude
changes to one particular cause, to the exclusion of all oth-
ers, absent specific record evidence, which is lacking herein.
Accordingly, it cannot be said that the General Counsel has
made a prima facie showing sufficient to warrant the infer-
ence that protected activity was a motivating factor under-
lying Lester’s discharge, and the undersigned shall rec-
ommend dismissal of the allegation of the complaint, per-
taining to the discharge of Janet Lester.26
V. THE CHALLENGED BALLOTS
At the representation election, which was conducted by the
Regional Director for Region 17 on April 22, the Board
agent challenged the ballots of three individuals, whose
names did not appear on the voter eligibility list. Two of said
individuals were Thomas Wood and Ken Southworth, and I
have above concluded that Wood had been laid off by Re-
spondent, on March 8, in violation of Section 8(a)(1) and (3)
of the Act. Accordingly, it is recommended that the chal-
lenge to his ballot must be overruled. Remaining for consid-
eration is the challenged ballot of Southworth. As to him,
there is no dispute that he was laid off on March 22; whether
his ballot should or should not be opened and counted de-
pends on whether or not he had a reasonable expectancy of
recall as of the voter eligibility date herein.
The record establishes that Southworth was hired by Re-
spondent in January 1989 and worked in the plaster pattern
shop, making plaster molds for hammer dye patterns. Three
employees worked in that department—Gregory King, the
working foreman, Tom Northcutt, and Southworth, and the
workload normally consisted of three to four ongoing jobs.
There is no dispute that, in January 1991, James Zaudke ap-
proached King and informed him that, with the contractual
backlog of work diminishing in that department, one of the
410 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set forth in the 1986
amendment to 26 U.S.C. § 6621.
three pattern shop employees would have to be laid off.
However, the necessity for such was avoided with the trans-
fer of Northcutt to the tooling department. The plaster pattern
shop workload continued to decrease, and, in March, only
one job, with a completion estimate of 3 to 4 weeks, re-
mained in the shop.
In these circumstances, Zaudke again spoke to King re-
garding the employee complement, giving him the choice of
performing the remainder of the work himself or keeping
Southworth as a helper and, thereby, shortening the employ-
ment for both of them. There is no dispute that Gregory
King decided to do the work himself and layoff Southworth.
According to the latter, on March 25, King spoke to him,
and ‘‘he told me that I would be laid off the following Fri-
day’’ because of a ‘‘lack of work.’’ Thereafter, on the Friday
of that week, Zaudke handed King his final check, saying he
was sorry but there was a ‘‘lack of work’’ at that time.
Southworth asked if there would be work ‘‘down the line,’’
and Respondent’s president replied, ‘‘That there would prob-
ably be no recall because, as far as he could tell, there
wasn’t going to be any more work . . . for a long, long
time.’’ A day or two after the layoff of Southworth, King
quit working for Respondent. The record establishes that,
since then, the work for the plaster pattern shop has been
mainly repair work and that Tom Northcutt ‘‘has done every-
thing up to what he could get done, as far as his ability.’’
Prior to the layoffs of Wood on March 8 and Southworth on
March 28, Respondent had never laid off an employee.
The Board has long held that, as a ‘‘ prerequisite’’ for vot-
ing eligibility, an employee, on layoff status as of the payroll
eligibility period, must ‘‘have a reasonable expectation of re-
call as of that time . . . .’’ Apex Paper Box Co., 302 NLRB
67, 68 (1991). As to whether an employee has such a ‘‘rea-
sonable expectancy,’’ the Board looks to several objective
factors including the employer’s past experience and its fu-
ture plans, and the circumstances of the layoff, including
what the employee was told as to the likelihood of recall.
Sol-Jack Co., 286 NLRB 1173 (1987). Herein, while Re-
spondent had no history of prior layoffs, there is no dispute
that work had significantly diminished in the plaster pattern
shop at the time of Southworth’s layoff and, at the time he
was laid off, Southworth was told the reason was a lack of
work and that he should not expect recall any time in the
future. In these circumstances, it cannot by said that Ken
Southworth had any expectancy of recall as of the payroll
eligibility date, and, accordingly, it is recommended that the
challenge to his ballot be sustained.
CONCLUSIONS OF LAW
1. 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.
3. Respondent laid off employee Thomas Wood on March
8, 1991, based on its suspicion that he was a leader of the
union organizing campaign amongst its employees and, as a
result, acted in violation of Section 8(a)(1) and (3) of the
Act.
4. On March 8, 1991, Respondent interrogated Janet Lester
as to her knowledge of the union activities of her fellow em-
ployees and thereby engaged in conduct violative of Section
8(a)(1) of the Act.
5. On March 8, 1991, Respondent demanded that Janet
Lester fabricate evidence with regard to the receipt of the
Union’s demand for recognition letter in order to establish a
sham defense for the unlawful layoff of Thomas Wood and
thereby engaged in conduct violative of Section 8(a)(1) of
the Act.
6. The aforementioned unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Unless specifically found above, Respondent engaged in
no other unfair labor practices.
REMEDY
Having determined that Respondent engaged is serious un-
fair labor practices in violation of Section 8(a)(1) and (3) of
the Act, I shall recommend that it be ordered to cease and
desist from engaging in such conduct and to take certain af-
firmative action designed to effectuate the purposes and poli-
cies of the Act. I have concluded that Respondent unlawfully
laid off employee Thomas Wood on March 8, 1991, because
of suspicions that he was ‘‘in charge’’ of the Union’s orga-
nizing campaign. Accordingly, I shall recommend that Re-
spondent be ordered to reinstate Wood to his former position
of employment or, if such no longer exists, to a substantially
equivalent position. Further, I shall recommend that Re-
spondent be ordered to make Wood whole for any lost earn-
ings, he may have suffered as a result of the discrimination
practiced against him, as prescribed in F. W. Woolworth Co.,
90 NLRB 289 (1950), and Isis Plumbing Co., 138 NLRB
710 (1963), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987).27 Additionally, I shall
recommend that Respondent be ordered to post a notice set-
ting forth its obligations.
[Recommended Order omitted from publication.]