Aluminum Technical Extrusions, Inc.

National Labor Relations Board - Board Decisions

Mar 29, 1985

274 N.L.R.B. 1414 (N.L.R.B. 1985)

1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aluminum Technical Extrusions , Inc. and United
Brotherhood of Carpenters and Joiners of
America, AFL-CIO-CLC. Case 8-CA-16826
29 March 1985
On the entire record, i including my consideration
of the briefs submitted by the General Counsel and
the Respondent, and on careful observation of the
witnesses and their demeanor, I make the following
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 20 September 1984 Administrative Law
Judge Arline Pacht issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, I and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Aluminum
Technical Extrusions, Inc., Sebring, Ohio, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
I The Respondent has excepted to some of the judge's credibility find-
ings 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
2 At various places in her decision, the judge has incorrectly identified
discnmmatee William Scott Miller This inadvertent error is corrected
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. The hear-
ing in this case was held in Alliance, Ohio, on May 31
and June 1, 1984 On charges filed on June 16 and July
22, 1983, by the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, CLC (the Union) a com-
plaint issued on July 26, 1983, and was amended on No-
vember 9, 1983, alleging that the Respondent violated
Section 8(a)(1) and (3) of the National Labor Relations
Act by alleging that Respondent unlawfully interrogated
its employees, conveyed to its employees the impression
that their union or concerted activities were under sur-
veillance, impliedly promised to reinstate an employee if
he disavowed any union activity, and terminated six em-
ployees because they engaged in concerted activities.
The Respondent filed timely answers denying the sub-
stantive allegations of the complaint
All parties were given a full opportunity to par-
ticipate, to introduce relevant evidence, to examine
and cross-examine witnesses, and to argue orally.
FINDINGS OF FACT
I JURISDICTION
Respondent, an Ohio corporation, with an office and
place of business in Sebring, Ohio, has been engaged in
the extrusion and nonretail sale of aluminum products. In
the course and conduct of its business operations, Re-
spondent has sold annually from its Sebring facility prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly to points outside the State of Ohio. Accordingly, I
find that Respondent is now, and has been at all material
times herein, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act
11. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background: The Company's Structure
As part of its production processes in extruding alumi-
num billets , Respondent operates two presses referred to
hereinafter as press 1 (the old press) and press 2 (the new
press). Under either a foreman or leadman , a six-member
crew performed various tasks on each press.
Prior to February 1983, Donald Miller served as Re-
spondent's vice president and plant manager. Miller's son
Scott was one of the foremen in charge of the crew on
press 2. However, on February 5, the senior Miller re-
signed and a major restructuring of management oc-
curred. John Sullivan assumed Miller's position as plant
manager while Michael Cupan, who was a foreman of
the crew on press 1, became plant superintendent with
supervisory authority over both presses About the same
time, Scott Miller and four of his crew that is, Tim Ar-
bogast, Mike Sanders, Randall Edwards, and Andrew
Tuel were laid off. Three other members of the press 2
crew, Brad Byrd, and two women classified as saw help-
ers, were not included in the February layoff. This was
not the first layoff that press 2 crewmembers had experi-
enced. In fact, on three or four occasions when business
was slow during the preceding months, members of this
crew were laid off while Mike Cupan's team was re-
tained.
Subsequently, about March 7, Scott Miller was re-
called but not as a foreman. Rather, for the first several
weeks of his reemployment, he served as a utility man
doing odd jobs as needed. On Friday, March 25, the four
men in Miller's crew who were previously laid off were
recalled and both presses again began running.
' At the hearing the parties were given the opportunity to submit a
document which would cure certain errors in R Exh 7 as to the precise
dates on which employees were terminated in 1983 Although the docu-
ment was not forwarded to me on the date proposed at the hearing, I,
nevertheless , admit it into evidence as R Exh 7(a)
274 NLRB No. 199
ALUMINUM TECHNICAL EXTRUSIONS
The parties do not agree as to whether, at this junc-
ture, Miller resumed the supervisory role he had exer-
cised when his father was plant manager or was reduced
to a position of leadman Miller testified that Cupan spe-
cifically told him that Cupan was the overall boss, that,
although Miller would be required to arrive each morn-
ing shortly before the other members of his crew in
order to set up the press for the day's operations and had
some responsibility for keeping the work flowing, he
would have no authority to hire, fire , or discipline work-
ers. He further testified that from March 25 on, he was
paid $4 an hour , or 50 cents more than the other crew-
members, but $1 an hour less than he had received when
he formerly headed the press 2 crew Miller told the re-
turning employees that Cupan was now their boss and, in
the subsequent days, the crew did perceive a difference
between his current and past authority.
From Cupan 's perspective , Miller continued in the
same supervisory position he previously held. According
to Cupan , Miller ws "completely in charge of the crew
I told him what to run , how many billets, and he was in
charge to see that it was run " Cupan acknowledged
than when the press 2 crew was recalled , Sullivan, the
new plant manager , informed the employees that Cupan
was now the boss . Cupan acknowledged that since he
became plant superintendent with added responsibilities
for both presses, he had appointed a leadman to oversee
the work of the crew on press 1.
Tim Arbogast, disenchanted by the Company's laying
off his crew while retaining other employees who alleg-
edly had less seniority , began to consider seeking union
assistance to rectify what he regarded as an unfair situa-
tion . On one occasion prior to his March 25 recall, while
Arbogast was discussing the layoff problem with Scott
Miller at his home, Donald Miller suggested that Arbo-
gast present the problem to the Carpenters Union which
represented employees at his current jobsite Acting on
this advice , Arbogast prepared a note setting forth his
complaints about working conditions at Respondent's fa-
cility and subsequently delivered it to the senior Miller
who promised to drop it into the Union's suggestion box
at his company
Scott Miller, Randy Edwards , and Mike Sanders each
testified that when press 2 began to function again on
March 25, Sullivan assured them that "orders looked
good " In other words , the prospect of continued em-
ployment was promising Nevertheless , from March 25
on, the alleged discriminatees began discussing among
themselves the desirability of union representation as a
method of redressing their concerns about seniority, job
security, and plant safety . Howard Tuel , a maintenance
mechanic for Respondent , and employee Andrew Tuel's
father, also participated in some of these conversations as
did Brad Byrd. Byrd was the only participant to oppose
unionization.
On Sunday , March 27, Tim Arbogast arrived at the
Miller house to further discuss the idea of forming a
union It is unclear from the record who if anyone else
attended this gathering , or whether a subsequent meeting
occurred. It appears that a meeting did take place either
on Sunday , March 27, or on the following day or possi-
bly on both days, with management learning of the union
1415
activity either on Monday , March 28, or March 29.
Cupan admitted that he first became aware of union ac-
tivity in the plant early on Tuesday, March 29, when an
elderly employee , Nelson "Pop" Irwin , asked him if he
could see the office manager, Marge Whitacre, about
signing a petition Upon asking Irwin what petition he
meant , Cupan related that Irwin became flustered and
acted as if he had "said something wrong . .. he's a
little slow . . and he got a little worried and he .
mumbled something and went on back to his fob " While
Cupan and Pop Irwin were talking , Brad Byrd joined
them and revealed that he, too, had been approached to
sign a petition adding that "Scott had a meeting at his
house last night "
Cupan also acknowleged that John Sullivan advised
him that a meeting had taken place Cupan stated that
when Sullivan arrived at work , presumably on Tuesday,
March 29, he told Cupan he had heard about a meeting
and "somebody told him a lot of things , but he didn't
want to tell me anything at that time ." A former mainte-
nance supervisor for Respondent , Mark Peterson , offered
further information regarding Respondent's knowledge
of union activity among its employees . He related that at
the start of the workday on March 29, Cupan asked him
for a quarter so that he could place a telephone call from
a booth rather than use his office telephone . Cupan then
advised him that a union meeting had been held at the
Miller house and asked if he knew anything about it.
After Peterson denied knowledge of such a meeting,
Cupan continued that "there had been reports of various
vehicles belonging to some of these people parked
around that house for a few hours the evening before."
Cupan also told Peterson "that there had been a petition
signed by all these people" and "we are going to get to
the bottom of this." Peterson said that after this ex-
change, Cupan telephoned Respondent 's owner, Mr.
George.
Later the same morning, Cupan questioned two em-
ployees about their union involvement Tim Arbogast
testified that before lunch , Cupan singled him out at the
press and put only one question to him , had he signed
any union papers Arbogast replied that he did not know
anything about it whereupon Cupan made some ambigu-
ous gesture and walked away. Cupan testified that he
asked Arbogast simply whether he had gone to a meet-
ing, not whether he had signed a petition Cupan stated
that when Arbogast denied any involvement he simply
walked away. Scott Miller testified to a similar exchange
with Cupan . While he was working on the press a few
feet from Arbogast, Cupan approached him and asked if
he had attended a meeting or signed a paper having to
do with unions . Miller said he had not and that ended
their conversation.
Early Tuesday afternoon, John Sullivan met with
Cupan and Peterson in his office . Peterson alleged that
be observed names listed on a yellow legal pad including
those of Howard Tuel, Scott Miller, Audrey Stevens,
Rose Defenbau, Marge Whitacre, and Tim Arbogast.
According to Peterson , these were union adherents
whom Sullivan wanted to fire. Peterson testified that the
meeting concluded with the three men agreeing that the
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-listed employees should be terminated He was as-
signed the task of firing maintenance mechanic Howard
Tuel, Sullivan was to lay off the women and Cupan, the
male crewmembers Cupan denied Peterson's version of
this meeting, claiming instead that while he and Sullivan
were discussing production matters, Peterson joined
them and announced that he wanted to fire Howard Tuel
because he worked too slowly Cupan maintained that he
did not interfere with this decision since Tuel worked
under Peterson's supervision.
At 1 30 p m on Tuesday, March 29, 4 days after their
recall, the press 2 crewmembers were summoned to the
die shop. There, with Cupan present, Sullivan informed
Miller, Arbogast, Edwards, Sanders, and Andrew Tuel
that they were laid off as of that date From a composite
of the uncontradicted testimony of these employees, the
reasons given for the layoff were that the old press was
leaking oil badly, that it was consuming too much elec-
tricity, and that it was too costly to run In addition,
orders were down. The way in which this layoff was an-
nounced was unprecedented in the employees' experi-
ence Previously, they were advised of layoffs in a some-
what casual manner Typically, Cupan simply would
mention it to several workers who would spread the
word to others affected Never before had any of the
press 2 crew been advised of a layoff at a special meeting
with both Sullivan and Cupan present. The layoff also
proved to be unique because, in contrast to others, it
became final None of these six crewmembers laid off on
March 29 have returned to work for Respondent. Byrd
and the two women saw helpers were the only employ-
ees on that press who survived the layoff According to
Peterson, Sullivan retracted his decision to fire the
women when they wept at being told they were being
laid off
Although Whitacre's name was among those on the
list which Peterson noticed, she apparently suffered no
adverse employment action However, she related that as
she was leaving work on March 29, Sullivan and Cupan
accused her of having a petition in her office "for people
to come in and sign for the union." She vehemently
denied any knowledge of such a petition
Howard Tuel was not present at the Tuesday after-
noon layoff meeting since he worked only during the
morning However, Peterson discharged him the next
day ostensibly for "lack of work " Tuel was somewhat
skeptical of this reason since he had not completed most
of the repairs which had been noted as safety violations
during a iecent inspection of the facility by the Occupa-
tional Health and Safety Administration. Peterson, who
socialized with Tuel outside of work, then disclosed to
him that the real reason for the layoff was his union ac-
tivity He told Tuel that his truck had been spotted out-
side a union meeting, and consequently, his name was
placed on a list of employees who were to be fired.
When Tuel denied that he attended such a meeting, Pe-
terson assured him that he would try to convince Sulli-
van of Tuel's innocence and seek his reinstatement
However, Tuel never was recalled
In an effort to impeach Peterson, Respondent estab-
lished that he had been fired from the Company in April
1983 for theft, was convicted on that charge, and was
currently on probation Moreover, Cupan denied Peter-
son's account of the meeting which he described as a
production conference between himself and Sullivan and
further alleged that it was Peterson who advocated firing
Tuel There is no dispute that Tuel worked steadily for
the Respondent since 1982, full time in the summer and
part-time during the academic year when he also held
work as a school bus driver. Until March 29, he had
never before been laid off by the Respondent
Cupan did not dispute the reasons assigned by the em-
ployees for their layoffs However, at the hearing, he of-
fered a justification other than high electric bills, low
orders, and mechanical problem with the press Cupan
testified that the Postle Company, a client whose orders
accounted for 60 percent of Respondent's business, pur-
portedly canceled two or three truckloads of orders at
some point close in time to when the layoff occurred
Cupan could not recall the exact date of this alleged can-
cellation Even after a series of highly suggestive, lead-
ing questions were posed to Whitacre, she was unable to
recollect a cancellation of the Postle contract at the time
of the layoffs Cupan maintained, nonetheless, that the
business loss of the Postle contract forced the Company
to eliminate one of the two press crews At another an-
other point in his testimony, Cupan explained that at the
time of the cancellation and layoffs, Respondent had a
backlog of orders from Postle that would take from 1 to
2 weeks to complete
When loss of business required layoffs, Cupan ex-
plained that it was logical to retain his own men who he
asserted had more seniority and experience than did
those on the other press. Cupan testified that he deliber-
ately placed the best workers on his crew to reduce the
time needed to supervise them so that he could expend
more of his workday on other matters. Cupan further
maintained that the Company customarily did not fire
unsatisfactory employees; instead, they simply were laid
off and not recalled Whitacre had a different view of
company policy than did Cupan for when she was asked
whether she was familiar with Respondent's practices re-
garding layoff and recall, she answered. "If they lay
them off then they have work again, they usually call
them back "
In keeping with his concept of company practice,
Cupan asserted that four of the other alleged discrimina-
tees were not rehired because they exhibited serious dis-
cipline and performance problems. Thus, Cupan ex-
plained that part of the reason for not recalling Scott
Miller turned on his relationship to Donald Miller whom
Cupan distrusted Cupan testified that when the senior
Miller resigned on February 5, he engaged in various
acts designed to harm the Company Consequently,
Cupan did not want anyone connected to Don Miller in
his plant. In attempting to demonstrate the former vice
president's deviousness, Cupan stated that Williams had
three recruiters contact him with job offers designed to
lure Cupan away from the Respondent Miller also alleg-
edly tried to steal customers from Respondent.
Cupan outlined other more specific problems that he
had with the younger Miller. He charged that in August
1982, Scott was responsible for producing 44,000 pounds
ALUMINUM TECHNICAL EXTRUSIONS
of scrap metal which was rejected by the customer In
fact, Cupan blamed Miller for running 500 percent more
scrap with his press crew than did the crew which
Cupan directed Although Miller denied ever producing
such a large amount of scrap, he did admit that his father
had criticized him for producing too much waste materi-
al when he first began working for him as a foreman In
an effort to explain why he had no documentation to
support his accusation against Scott, Cupan stated that
waste scrap would not show up on production reports
unless it was junked or transferred to the shipping de-
partment and listed as rejected metal or customer re-
turns. Yet, Cupan testified that the customer who was to
receive the 44,000 pounds of aluminum did, in fact,
return the defective material
Cupan opposed Arbogast 's reinstatement because he
viewed him as a close ally of Donald Miller Conse-
quently, Cupan knew "that it would hurt the Company",
since Arbogast "would give any information he could as
to new customers or any other information pertinent
to Don Miller taking over our business "
Cupan opposed Randy Edwards reinstatement because
he had been fired previously for drinking, was continual-
ly absent, upset carts, and ruined metal Moreover, on
Saturday, March 26, Edwards allegedly came to work
suffering from a hangover and deliberately broke a piece
of equipment as a ruse to halt production so that the
crew could leave work early Edwards was not asked for
his account of this incident, but Scott Miller, who was
present when the equipment broke, testified that Ed-
wards did not act deliberately, and that the equipment
was leaking badly and was "tore up before it ever
busted." Cupan's additional assertions about Edwards'
absenteeism were not corroborated by attendance cards
which the Respondent offered and were received into
evidence
Cupan considered Andrew Tuel a slow worker and
learner and one who often complained about the difficul-
ty of the job Consequently, Cupan decided not to recall
him since, in his view, the Company had better people to
select
Cupan denied any involvement in the decision not to
recall Howard Tuel In fact, he regarded Tuel as a capa-
ble employee and expressed surprise that Peterson
wanted to get rid of him because he knew they were
friends Cupan's testimony in this regard is in conflict
with Peterson's who explained that although Tuel was an
average employee, he was an asset to the Company be-
cause he provided his own tools Peterson also disclosed
that he hired a replacement for Tuel within 3 days of the
mechanic's discharge who was discharged for incompe-
tency not more than a week later
The parties also disagree as to when and how an offer
to return to work was made to Sanders Sanders testified
that on April 1, his wife received a telephone message
that John Sullivan wanted Sanders to meet him at the
plant When Sanders went to the facility that same day,
Sullivan ushered him into his inner office, shut the door,
and told him that the entire press 2 crew had been fired
except for him Sullivan then asked Sanders if he had
signed any union papers Sanders replied that he had not;
that it had been just talk Sullivan added that "Scott
1417
Miller and his Dad was trying to get you guys in trouble
by starting a union " At that point, Sullivan told Sanders
he was a good worker, and that he should still be work-
ing and promised to call him the following Monday
about returning to work. When no call came on
Monday, Sanders telephoned the plant and was told by a
secretary that he was no longer needed
Respondent did not produce Sullivan as a witness nor
could Cupan verify whether or not Sullivan had engaged
in any conversation with Sanders subsequent to March
29 However, Cupan maintained that about May 1, busi-
ness began to increase, making it necessary to add a
second crew Since not enough current employees were
on hand, Cupan began to hire outside help. He instructed
Marge Whitacre to telephone Sanders with an offer of
reemployment since he had always considered him an
able employee According to Cupan, Whitacre reached
Sanders directly and he agreed to return the following
Monday However, later that same afternoon, Whitacre
allegedly told Cupan that Sanders had called and an-
nounced that he had taken a better job. Sanders insisted
that since his March 29 layoff, he remained unemployed
Whitacre was neither asked nor did she allude to any
telephone conversation with Sanders in May such as that
described by Cupan However, she did recollect that,
after a layoff in January 1983, Sanders subsequently de-
clined reinstatement after finding another job.
Respondent introduced into evidence cards of some 69
former employees who either quit or were laid off in
1982 and 1983 and never recalled to prove that the dis-
criminatees were not treated disparately These records
do show that a number of employees were not rehired
after layoffs. However, they also demonstrate that the six
terminated employees had relatively longer service
records with the Company than did 55 of the 69 employ-
ees whose attendance cards were included in Respond-
ent's Exhibit 7 Thus the cards establish that Howard
Tuel worked approximately 21 months, Edwards, 19
months, Miller, 18 months; Arbogast, 12 months,
Andrew Tuel, 8 months; and Sanders, 7 months In con-
trast, 55 of the 69 cards represent employees with tenure
of 1 year or less with 32 cards showing employment
records of three or fewer months employment before ex-
periencing a final layoff or termination. Moreover, the
cards also show that five of the six discriminatees were
recalled a number of times after previous layoffs 2 It is
also significant that the cards indicate that four new ex-
trusion employees began working on April 4 3 Another
11 were hired between April 18 and 27, 19 more workers
were added in May, and an additional 5 in June. It also
should be kept in mind that the attendance cards were
presented only for employees who quit, were fired, or
laid off in 1982 and 1983 No cards were offered for em-
2 Howard Tuel had not been laid off prior to March 30
9 Attendance cards for James Berbom, Wilbur Berger , Robert Kovac-
casiss, Tom Nicolson, and Ricard Smith bear checkmarks which indicate
that these men began working on April 4, 1983, yet, the cards also bear a
written hire date of April 24 It is highly unlikely that the hire date is
accurate for Whitacre would not have entered checkmarks on each card
for days worked between April 4 and 24 if these employees had not been
present in the shop
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees who were hired subsequent to the March 29
layoff and remained in Respondent's employ
B Discussion
I The 8(a)(3) violations
The General Counsel contends that on the same day
that the Respondent learned that a number of its employ-
ees were interested in seeking union representation, it en-
gaged in unlawful interrogations, conveyed the impres-
sion that it was engaged in surveillance, and then abrupt-
ly terminated those whom it believed to be union propo-
nents According to the Respondent, however, a legiti-
mate business reason compelled each of the layoffs,
namely, the loss of major customers
In cases such as this where both legitimate and invidi-
ous motives under the Act are offered to explain an em-
ployer's actions toward its employees, the Board relies
upon a two-step test to determine whether a causal rela-
tionship exists between the alleged discriminatory action
and the employees' concerted activities Wright Line, 251
NLRB 1083 (1980), enfd as modified 662 F 2d 899 (1st
Cir 1981), cert denied 455 U.S 989 (1982) The General
Counsel first must make a prima facie showing sufficient
to support an inference that the protected conduct was a
motivating factor in the employer's decision to impose
discipline upon an employee Once this is established, the
burden shifts to the employer to demonstrate by a pre-
ponderance of the evidence that its conduct would have
been the same even in the absence of the employee's pro-
tected activity Id at 1089; Roure Bertrand Dupont, Inc ,
271 NLRB 443 (1984)
Here, uncontroverted facts lay the groundwork for the
General Counsel's prima facie case It is beyond dispute
that the six employees discharged on March 29 and 30
became engaged in protected concerted activities at least
several days before the layoffs when they discussed what
they perceived to be adverse working conditions and
agreed that union representation would help to correct
them It is equally evident that the Respondent knew of
these employees' interest in union representation Indeed,
Cupan admitted to having obtained such inside informa-
tion from Brad Byrd, the only male member of the press
2 crew who disapproved of union representation and the
only one who survived the layoff Cupan acknowledged
that Byrd told him of a meeting and a petition 4 Having
gone this far, it is inconceivable that Byrd would not
have revealed that the employees continued their con-
certed activities at the plant and disclosed to Cupan the
identity of all those involved
Generally, it is difficult for the trier of fact to disen-
tangle the motives of others In the instant case, howev-
er, if Peterson's testimony is credible, no such problem
exists for he provided direct, eyewitness evidence of Re-
spondent's plot to rid itself of union sympathizers Re-
spondent attempts to diminish the devastating impact of
Peterson's testimony, arguing that because he was fired
4 Whether or not the employees actually held a meeting and prepared
a prounion petition in addition to discussing working conditions at the
shop is less critical than the fact that management believed they had See
NLRB v Burnup & Suns, 379 U S 21 (1964)
for and convicted of theft he is too biased to be believed
Although he acknowledged hostile feelings toward the
Company, I am convinced that Peterson, not Cupan, was
telling the truth This conclusion stems from the fact that
Peterson's account of his discharge meeting with Tuel
was wholly corroborated by Tuel, himself, whom I
found to be a singularly trustworthy witness. I detected
no fabrication in Tuel's testimony nor artifice in his
manner; he was a thoughtful and forthright witness In
addition to these observations, I note that Tuel's unbro-
ken service with Respondent suggests he was a valued
employee until he participated in concerted activities.
In addition to Peterson's revelations, an inference of
Respondent's discriminatory intent arises from the timing
of the layoffs. See NLRB v. Garon, 738 F 2d 140 (6th
Cir 1984). When the members of press crew 2 were re-
called just 4 days before their final layoffs, several of
them were assured that ample work was in the shop
Yet, they were laid off within hours after management
learned of their union activity The unprecendented,
somewhat ceremonious manner in which the employees
were summoned to a meeting at which the layoffs were
announced, and the abruptness of their discharges in
midweek also buttresses an inference of unlawful con-
duct by the Respondent
Based on the foregoing considerations, I have no diffi-
culty in concluding that the General Counsel had met
her burden in establishing a prima facie case
Given the compelling evidence presented by the Gen-
eral Counsel, the Respondent bore a heavy burden of
proving that it would have treated its employees in an
identical manner even in the absence of protected con-
duct Of course, if the reasons advanced by the Respond-
ent to support its actions did not exist, or were not, in
fact, relied upon, then its defense fails tand the General
Counsel's case remains unrefuted Limestone Apparel
Corp, 255 NLRB 722 (1981) For the reasons set forth
below, I find that the Respondent's evidence is so lack-
ing in merit as to compel the conclusion that its defense
was pretextual.
For the first time at the hearing, the Respondent as-
serted that the loss of a major client was the principal
cause of the layoffs It is curious that this justification
was not mentioned to the employees at the March 29
meeting Instead, a host of other reasons were ad-
vanced-high electric bills, inefficient machinery, and in-
sufficient work. None of these excuses withstands scruti-
ny. Surely, the Respondent would have known that the
press leaked oil and consumed excess electricity on
March 25, yet, the employees were recalled on that date
after a month's layoff and assured that sufficient work
was on hand. The Board has long expressed the view
that when an employer vacillates in offering a rational
and consistent account of its actions, an inference may be
drawn that the real reason for its conduct is not among
those asserted F W.I.L. Lundy Bros. Restaurant, 248
NLRB 415, 428 (1980), Steve Aloi Ford, 179 NLRB 229
(1969). Such an inference is warranted here.
Equally suspicious is Respondent's failure to offer any
documentation which would establish, when, if ever, the
ALUMINUM TECHNICAL EXTRUSIONS
Postle order was canceled 5 Moreover, Respondent
failed to present a single witness who could corroborate
Cupan's assertion that the Postle job was canceled Try
as he might, Respondent's representative was unable to
elicit such substantiation from office manager Whitacre
Even assuming, arguendo, that there was an interruption
in the Postle order at some point close in time to when
the layoffs occurred, Respondent failed to provide any
explanation as to why the employees had to be terminat-
ed midweek when a 1- or 2-week backlog of work re-
mained
The evidence which did the greatest damage to Re-
spondent's defense came from its own attendance cards
They show that four new extrusion operators began
working for the Respondent on April 4, less than a week
after the six union sympathizers were terminated 6
Within 4 weeks after the layoffs occurred, another 11
workers were hired. The addition of 15 new operators in
this brief time period suggests not only that normal oper-
ations resumed, but that business was booming
Respondent's efforts to justify its refusal to recall the
six employees were as unconvincing as the reasons given
for laying them off in the first place. Respondent con-
tended that it was standard operating procedure to layoff
employees and not recall them; that no guarantees were
given to employees which would justify an expectation
of reemployment It is axiomatic that in the absence of
unlawful motivation, an employer is under no compul-
sion to recall employees after a layoff However, the
record in this case clearly shows that each of the em-
ployees who were dismissed on March 29 had been laid
off and recalled with regularity in the past, that is, until
Respondent identified them as union advocates Morever,
Whitacre's understanding of company policy did not
square with Cupan's for she testified that laid-off em-
ployees were regularly rehired when there was work
Further, the attendance cards demonstrate that when the
Respondent intended to permanently discharge employ-
ees it did so unequivocally, entering the word "fired" on
their records.'
If Cupan found the employees as inefficient as he
claimed at the hearing, one wonders why he recalled
them on March 25 Recognizing this weakness in his
presentation, Cupan alleged that he had not wanted to
rehire Williams and Arbogast, implying that the decision
to recall them was made by someone else. However,
Marge Whitacre indicated that it was Cupan who con-
trolled hiring and firing of employees Moreover, it is
unlikely that Mr George, the absentee owner of the
Company, would disregard his plant superintendent's
advice if Cupan actually opposed the reemployment of
any former employee Thus, Cupan's claim that he did
5 The failure to present such documentation, which was in Respond-
ent's sole possession and control, warrants an inference that if such evi-
dence were produced, it would not substantiate Respondent's contention
See Pacific Coast International Meat Co, 248 NLRB 1376, 1382 (1980), B
& L Plumbing, 243 NLRB 1016. 1022 (1979)
6 See attendance cards included in R Exh 7 for James Berbone, Rich
Berenger, Robert Kovacain, and Tim Nicholson
' See, e g, attendance cards included in R Exh 7 for former employ-
ees Rich Berenger, Robert Miller, Buddy Myers, Kenneth Myers, and
Dale Reynolds
1419
not approve the reinstatement of the press operators was
apparently conjured up in hindsight
The deficiencies which Cupan attributed to each of the
press 2 crewmembers to justify his refusal to recall them
also seemed resurrected to suit the occasion He distrust-
ed Williams and Arbogast because of their allegiance to
the senior Williams Yet, their loyalties to the Company's
former vice president did not prevent either of them
from being rehired, nor did it prevent Scott Miller's pro-
motion from utility man to crew leader Moreover,
Cupan's contention that Miller was responsible for pro-
ducing a large amount of scrap in 1982 was too stale to
carry any currency As for Tuel, he was no slower a
worker or learner on March 29 than he was on March
25 when he was recalled
The circumstances attending Howard Tuel's dismissal
most clearly expose the Respondent's union animus and
unlawful motives. As discussed above, I credit Peterson's
and Tuel's account of the real reasons underlying the
maintenance mechanic's discharge In addition, it is well
to bear in mind that Tuel had never before been laid off,
he supplied the Company with his own tools, and at the
time of his layoff he was working against a deadline to
correct deficiencies detected during an OSHA inspec-
tion, and was replaced within 3 days after his termination
by an employee who proved to be incompetent. Cupan's
assertion that he had no authority to overrule Peterson's
alleged decision to terminate Tuel is, simply put, incredi-
ble
In light of Cupan's many deceits, I accord no credence
to his testimony regarding his attempt to recall Sanders.
Although Cupan stated that Whitacre telephoned Sand-
ers, Respondent failed to question her, the one person
who might have been in a position to corroborate
Cupan's story. What Whitacre did make clear is that
Sanders quit after being recalled from a layoff in January
1983 Perhaps it was this earlier episode which Cupan
had in mind for there is no entry for a similar occurrence
in May as he alleged
Given the record in this matter, it is difficult to imag-
ine a case in which an employer's discriminatory motives
were more blatant or its methods more crass in disposing
of workers who were engaged in concerted activity. Suf-
fice to say, I conclude that the Respondent's defense is a
sham and does not disguise its unlawful discharge of the
six named employees.
2 Miller's status as an employee
Although I have concluded that Scott Miller was dis-
charged because of his prounion stance, his termination
may not be deemed unlawful under the Act if, as Re-
spondent contends, Miller was a supervisor as defined by
Section 2(11) of the Act The burden of proving the su-
pervisory status of an employee rests with the Respond-
ent as the party asserting that status Tucson Gas & Elec-
tric Co, 241 NLRB 181 (1979) After reviewing the rele-
vant evidence and considering the factors upon which
Respondent relies to support its contention that Miller
had supervisory authority, I find that burden has not
been met.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent points out that Williams was in charge of
overseeing the flow of work However, Cupan deter-
mined what and how much should be produced on both
of the presses. Williams merely redistributed the assign-
ments to the various crew members, each of whom were
well-grounded in the skills needed to perform their jobs
Put in proper perspective, Williams simply served as a
conduit for Cupan's instructions His responsibilities for
the flow of work was routine in nature and did not
depend upon the exercise of independent discretion
which is a classic hallmark of a supervisor under the
Act. See D-P Custom Building Products, 251 NLRB
1337, 1338 (1980), Cablevision Systems Development Co.,
251 NLRB 1319, 1323 (1980).
There is absolutely no evidence that Williams had au-
thority to correct the work of his fellow employees nor
to reprimand or otherwise discipline them to an extent
which might significantly affect the employees' job status
or work to his detriment. Thus, Williams exercised little
meaningful control over his coworkers' performances.
See Tucson Gas & Electric Co, supra at 182
It is true that Williams was called upon to report to
work a little earlier than the other members of his crew
but, without more, this alone does not invest him with
supervisory authority. Moreover, although he earned 50
cents more per hour than did his coworkers, this sum is
not inconsistent with his role as leadman. This is particu-
larly so given the fact that he earned a dollar more per
hour than the other members of the crew when he
served as foreman at the time that his father was vice
president of the Company. Further, it is clear that after
March 25, Williams did not regard himself nor was he
viewed by others as an arm of management. Rather, it is
apparent that he identified completely with the interests
of his fellow employees. See High Performance Tube Co.,
251 NLRB 1362, 1369 (1980). For the foregoing reasons,
I conclude that Scott Miller was not a supervisor, but
rather a leadman and employee within the meaning of
Section 2(3) of the Act. It follows that his discharge con-
stituted a violation of Section 8(a)(3) and (1).
3 The independent 8(a)(1) violations
I find that there is substantial and frequently uncontro-
verted evidence in the record which supports the Gener-
al Counsel's allegations that Respondent engaged in a
series of acts which are violative of Section 8(a)(1) of the
Act.
Thus, in agreement with the General Counsel, I find
that Cupan's questioning Arbogast and Miller about
whether they attended a union meeting and signed a peti-
tion for the Union constituted unlawful interrogation.8
Respondent argues in reliance on Rossmore House, 269
NLRB 1176 (1984), that the allegations of unlawful inter-
rogation in the plant must be dismissed. In Rossmore, the
Board ruled that interrogations of known union support-
ers which are unaccompanied by threats are not per se
a Cupan suggested that he did not use the word "union" to identify the
kind of meeting or petition he meant when he questioned the two em-
ployees However, as discussed above, I find it impossible to believe that
Byrd would have omitted any reference to a union meeting or a prounion
petition when he mentioned these matters to Cupan
unlawful Instead, the Board held that it is necessary to
examine all the circumstances to determine whether "the
interrogation reasonably tends to restrain, coerce, or
interfere with rights guaranteed by the Act " Id (269
NLRB at 1177.) In other words, "to fall within the ambit
of Section 8(a)(1), either the words themselves or the
context in which they are used must suggest an element
of coercion or interference " Id (269 NLRB at 1177,
quoting Midwest Stock Exchange v. NLRB9). The facts
attending Cupan's interrogation of Williams and Arbo-
gast are markedly dissimilar from those described in
Rossmore and therefore lead to a different result. Here,
neither Scott nor Arbogast was an overt union partisan
nor did either of them openly present his prounion views
to management To the contrary, they denied knowledge
of having participated in a union meeting or knowing
about a prounion petition. Their denials indicate that the
interrogations were coercive enough to elicit false an-
swers, thereby demonstrating "their natural fears about
such questioning." NLRB v. Garon, supra, 738 F.2d 140.
Further, the questions were not posed during the course
of casual conversation on the shop floor Rather, Cupan
confronted each employee separately at his work station
and posed his brief, unadorned and unexplained question
in an abrupt manner. Even after the employees denied
any union involvement, they were uncertain that Cupan
was assuaged by their answers. Although no explicit
threats or promises were made at that time, in the reality
of this workplace, these queries had to convey the mes-
sage that union activity was viewed with hostility In
context, Cupan's interrogation of Williams and Arbogast
had to be highly coercive and therefore falls within the
proscription of Section 8(a)(1)
As noted above, Sanders' account of his private, even
secretive interview with Sullivan, the person highest in
command at the facility, and his recital of the questions
which Sullivan put to him about his union activity were
unrefuted. There can be no doubt that Sullivan made it
clear to Sanders that his return to work depended on his
responding to these inquiries with a disavowal of any in-
terest in union representation. It is not difficult to distin-
guish the situation described by Sanders from the fact
pattern set forth in Rossmore and to recognize that this
exchange, like those described above, was highly coer-
cive.
Although they were friends, Peterson's comments and
questions to Tuel nevertheless revealed the antiunion
posture of management. Indeed, precisely because of
their association, Tuel had all the more reason to believe
that Peterson was conveying accurately the position of
Respondent. Therefore, Respondent may not escape li-
ability for the coercive nature of Peterson's remarks.
There can be no greater restraint on an employee's exer-
cise of Section 7 rights then being told, as was Tuel, that
his discharge is attributable to management's belief that
he was sympathetic to the Union's cause. It is true that
Peterson queried Tuel as to his attendance at a union
meeting in an effort to help him retain his job Neverthe-
less, the questioning was unlawful since it surely suggest-
9 635 F 2d 1255, 1267 (7th Cir 1980)
ALUMINUM TECHNICAL EXTRUSIONS
ed to Tuel that the Respondent was engaged in surveil-
lance of the employees' union activities Just as surely,
Tuel would understand that his reinstatement depended
upon his renouncing interest in union representation
Accordingly, I conclude that the record provides
more than ample support to sustain the 8(a)(1) violations
alleged in paragraphs 6(A), (B), and (C) of the com-
plaint
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 mean-
ing of Section 2(5) of the Act
3 By coercively questioning employees about their
union activities, creating the impression that it was en-
gaged in surveillance of the employees' concerted activi-
ties, explicitly informing an employee that his discharge
was based on his union involvement, and promising to
seek restoration of his employment if he disavowed any
union involvement, Respondent has interfered with, re-
strained, and coerced employees in the exercise of rights
guaranteed in Section 7 of the Act and, thereby, has en-
gaged in and is engaging in unfair labor practices within
the meaning of Section 8(a)(1) of the Act.
4. By terminating the employment of Scott Miller,
Timothy Arbogast, Andrew Tuel, Mike Sanders, and
Randall Edwards, on March 29, and of Howard Tuel on
March 30, 1983, Respondent has discriminated with re-
spect to the hire, tenure, or other terms and conditions of
employment of employees in order to discourage mem-
bership in a labor organization and thereby has engaged
in and is engaging in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act
5. The aforesaid unfair labor practices effect commerce
within the meaning of Section 2(6) and (7) of the Act
THE REMEDY
Having found that Respondent has engaged in certain
unair labor practices, I recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the purposes and policies of
the Act The recommended Order will provide that the
Respondent be ordered to offer to William Miller, Timo-
thy Arbogast, Andrew Tuel, Mike Sanders, Randall Ed-
wards, and Howard Tuel immediate and full reinstate-
ment to their former positions or, if such positions no
longer exist, to substantially equivalent positions without
prejudice to any seniority or other rights and privileges
they may have enjoyed and make them whole for any
loss of earnings they may have suffered by reason of the
Respondent's acts detailed herein by payment to them of
a sum of money equal to the amount they would have
earned from the date of their unlawful layoffs to the date
of an offer of reinstatement, less net earnings during such
period, with interest thereon, to be computed on a quar-
terly basis in the manner established by the Board in
F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing
Co, 138 NLRB 716 (1962), and Florida Steel Corp., 231
NLRB 651 (1977)
1421
Additionally, because the Respondent's unfair labor
practices are serious, strike directly at the heart of em-
ployees' rights protected by the Act, and affect a sub-
stantial number of employees relative to the overall work
force at the facility, a broad order requiring Respondent
to cease and desist from in any other manner infringing
upon rights guaranteed to its employees by Section 7 of
the Act is recommended. See Hickmott Foods, 242
NLRB 1357 (1979)
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edio
ORDER
The Respondent, Aluminum Technical Extrusions,
Inc , Sebring , Ohio, its officers , agents, successors, and
assigns, shall
I Cease and desist from
(a) Discouraging membership in the United Brother-
hood of Carpenters and Joiners of America , AFL-CIO-
CLC or any other labor organization by unlawfully per-
manently laying off any of its employees or discriminat-
ing against them in any other manner with respect to
their hire or tenure of employment in violation of Sec-
tion 8 (a)(3) and (1) of the Act.
(b) Interrogating employees about their union activi-
ties, sympathies , or beliefs or creating the impression that
it has its employees ' union activities under surveillance
(c) Implying to employees that the retention or resto-
ration of their jobs depends on the disavowal of union
activity
(d) In any other means interfering with, restraining, or
coercing employees in the exercise of the rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer immediate full and unconditional reinstate-
ment to employees William Miller, Timothy Arbogast,
Andrew Tuel , Mike Sanders , Randall Edwards, and
Howard Tuel to their former positions of employment
or, if those positions no longer exist , to substantially
equivalent positions , discharging other employees, if
need be, to make room for them and make whole each of
the above -named employees with interest for any losses
they may have suffered as a consequence of Respond-
ent's unlawful discharges of them in the manner de-
scribed in the section entitled, "The Remedy."
(b) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records , social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order
10 If no exceptions are filed as provided by Sec 10246 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(c) Post at its facilities in Sebring, Ohio, copies of the
attached notice marked "Appendix"" Copies of the
notice, on forms provided by the Regional Director for
Region 8, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
tive days in conspicuous places including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply
I I If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
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 protect-
ed concerted activities.
WE WILL NOT discourage membership in the United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, CLC or any other labor organization by un-
lawfully laying off any employees or discriminating
against them in any other manner with respect to their
hire or tenure of employment
WE WILL NOT interrogate our employees that we are
engaged in surveillance of their concerted or union ac-
tivities.
WE WILL NOT impliedly promise our employees that
the retention or restoration of their jobs are dependent
on disavowal of union or concerted activity.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce our employees in the exercise of rights
guaranteed them under Section 7 of the National Labor
Relations Act.
WE WILL offer reinstatement to William Miller, Timo-
thy Arbogast, Mike Sanders, Randall Edwards, Andrew
Tuel, and Howard Tuel to the jobs from which they
were unlawfully discharged, without prejudice to any se-
niority or other rights and privileges they may have pre-
viously enjoyed and make them whole for any loss of
pay they may have suffered by reason of the discrimina-
tion practiced against them.
ALUMINUM TECHNICAL EXTRUSION, INC