American Poly-Therm Co., Inc.

National Labor Relations Board - Board Decisions

Jun 29, 1990

298 N.L.R.B. 1057 (N.L.R.B. 1990)

AMERICAN POLY-THERM CO.
American Poly-Therm Company, Inc. and Richard
Smith. Case 20-CA-21930
June 29, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 7, 1990, Administrative Law Judge
Gerald A. Wacknov issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions,2 and to adopt the judge's recommend-
ed Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, American
Poly-Therm Company, Inc., Sacramento, Califor-
nia, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
1 The Respondent has excepted to 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 Prod-
ucts, 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 fmd-
mgs.
2 We adopt the judge's 8(aX1) interrogation findings in light of the fol-
lowing credited evidence. Shortly after an OSHA inspection of the Re-
spondent 's premises and presentation of a complaint from an unidentified
source to President Weatherly, Weatherly called employee Bradford into
his office and asked if Bradford or his friend Smith had filed a complaint
with OSHA. Bradford responded that he had not and did not believe that
Snnth would do so. Weatherly then duected Bradford to question Smith
and to report back with Smith's response. In the followup conversation
Bradford related Smith's negative response to Weatherly 's question, and
Weatherly replied that if any such problems arise in the future, he
"would sure hope that you two would come to see me before going to
anybody else." Then in mid-October Supervisor Hurley asked Smith if he
had taken pictures of a missing electrical panel cover and sent them to
OSHA; and on November 6, immediately after Smith and Bradford were
told they were laid off, Hurley again approached Smith and explained
that the reason for letting Smith go was because he and Bradford were
friends and because Weatherly believed that they were involved in call-
ing OSHA . We find, therefore„ in agreement with the judge, that the in-
terrogations of Bradford and Smith were in pursuit of Weatherly's suspi-
cion that they had both complained to OSHA-a suspicion that ultimate-
ly led , to their unlawful layoffs . Under all the circumstances, we find that
these interrogations had a reasonable tendency to coerce employees and
therefore violated Sec 8(a)(1) of the Act.
Boren Chertkov, Esq., for the General Counsel.
Lawrence Wengel, Esq. (Greve, Clifford, Diepenbrock &
Paras), of Sacramento , California, for the Respondent.
DECISION
1057
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge.
Pursuant to notice, a hearing with respect to this matter
was held before me in Sacramento, California, on June
13, 14, and 15, and August 29, 1989. The charge was
filed on April 29, 1988, by Richard Smith, an individual.
Thereafter, on October 31, 1988, the Regional Director
for Region 20 of the National Labor Relations Board
(the Board) issued a complaint and notice of hearing al-
leging a violation by American Poly-Therm Company,
Inc. (the Respondent) of Section 8(a)(1) of the National
Labor Relations Act (the Act). The complaint was
amended on January 27, 1989. The Respondent's answers
to the complaint and amended complaint, duly filed,
deny the commission of any unfair labor practices.
The parties were afforded a full opportunity to be
heard, to call, examine and cross-examine witnesses, and
to introduce relevant evidence. Since the close of the
hearing, briefs have been received from the General
Counsel and counsel for the Respondent.
On the entire record, and based on my observation of
the witnesses and consideration of the briefs submitted,"
I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is a California corporation with an
office and place of business located in Sacramento, Cali-
fornia, where it is engaged in the manufacture and
wholesale distribution of molded composite parts. In the
course of its business operations, the Respondent annual-
ly sells goods and materials valued in excess of $50,000
directly to customers located outside the State of Califor-
nia.
It is admitted, and I find, that the Respondent is now,
and has been at all times material, an employer engaged
in commerce within the meaning of Section 2(2), (6), and
(7) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Issues
The principal issues raised by the pleadings are wheth-
er the Respondent unlawfully discharged employees
Richard Smith and Michael Bradford on November 6,
1987, because of their suspected protected concerted ac-
tivity in bringing safety matters to the attention of the
Federal Occupational Safety and Health Administration,
and whether the employees were coercively interrogated
by Respondent's representatives in this regard, in viola-
tion of Section 8(a)(1) of the Act.
1 The Respondent's motion to reject the General Counsel's brief for
late filing is hereby denied
298 NLRB No. 157
1058 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. The Facts
1. Bradford's testimony
Michael Bradford began working for the Respondent
in January 1986. He was hired as a plastics technician
and performed various types of production work. During
his tenure with the Respondent he performed "almost
every job on the floor as far as presses and other jobs."
The Respondent admits that he was qualified and techni-
cally competent to perform a variety of work throughout
the plant.
In June 1987,2 Bradford was assigned to work on the
fabrication of bicycle frames and assisted Richard Smith
on this project.3 In early September, during a meeting
with Hal Weatherly, president of Respondent, Ed
Phelps, production manager, and Mike Gadwell, the en-
gineer in charge of the bicycle job, Bradford was told
that the Company was trying to gear up in order to
produce as many bicycle frames as possible, that they ap-
preciated the job that both Bradford and Smith4 had
been doing on the bicycles, and that they wanted Brad-
ford to oversee the crew on that project. Gadwell, ac-
cording to Bradford, said that he thought Bradford was
the best man for the job. He received a $1-per-hour raise
and was made leadman on the swing shift bicycle crew.
Bradford testified that in early October Weatherly in-
vited him into the office. He placed a sheet of paper in
front of Bradford, and asked whether Bradford had ever
seen it before. Weatherly explained that the document
was part of a complaint form filed with the Federal Oc-
cupational Safety and Health Administration (OSHA) by
an employee of-the Company, and that the OSHA repre-
sentative would not divulge the name of the employee.
The paper describes 13 workplace hazards. The first four
enumerated hazards concern electrical problems both
within and outside the Respondent' s premises : an electri-
cal panel outside the building with a service disconnect
that does not work; an overloaded electrical subpanel in
the machine shop; electrical boxes throughout the plant
in which pipes have been substituted for fuses; and un-
supported conduit throughout the plant, particularly
behind the paint booth.
Weatherly asked whether Bradford had ever seen the
complaint form before, and Bradford said no. Weatherly
asked whether Bradford recognized or was familiar with
any of the listed hazards, and Bradford replied that the
first several items were familiar to him as he had noticed
them during the last inspection of the premises by the
safety committee. Weatherly said, according to Bradford,
"I know you and Smith were messing around with some-
thing electrical in the back, and . . . it's kind of funny
that some of those [items] are on there." Bradford said
that the electrical problems were common knowledge
among the employees, and that a summary of the safety
s All dates or time periods are within 1987 unless otherwise indicated.
a The project involved the production of a high-tech, lightweight bicy-
cle frame, utilizing composite materials, for Cycle Composites , one of the
Respondent's customers.
4 Smith , who had asked for a wage increase, was taken off the bicycle
crew prior to this time since the bicycle project was not a profitmakmg
project at that time , thus, Smith was given a different production job so
that he could receive more money.
committee's inspection report was posted on the bulletin
board. Bradford also pointed out that some of the items
listed in the complaint did not pertain to the work of the
swing shift, on which Bradford worked. Weatherly again
asked whether Bradford was sure he had not seen the
complaint form before or had not filled it out, and Brad-
ford said he was sure. Weatherly then asked, "Well,
what about Richard Smith?" Bradford replied that he did
not believe Smith would have filed the complaint, and
Weatherly then asked Bradford to ask Smith. Weatherly
further inquired whether Bradford had any idea of who
might be responsible for the complaint, and Bradford
said no.
Immediately thereafter, Bradford explained to Smith
what had happened, and asked Smith if he was responsi-
ble for the complaint; Smith said no, and Bradford re-
ported this to Weatherly.5 Weatherly replied that if any
such problems arise in the future, he "would sure hope
that you two could come to see me before going to any-
body else."
In mid-October, Don Hurley, Bradford's swing shift
supervisor, approached Bradford and said that there
were rumors of another layoff, and that Hurley had to
figure out what people he needed to get rid of on the
swing shift. He mentioned three names to Bradford, and
told him that he and Richard Smith "don't have any-
thing to worry about. You are my best people, so don't
even worry about it."
On October 27, Bradford twisted his ankle and missed
work for several days. During this period he received a
call from Phelps who asked him when he would be re-
turning to work. Phelps also asked him whom he be-
lieved was the most qualified employee on the bicycle
crew. Bradford mentioned the name of one particular
employee who "really knew his stuff." When Bradford
returned to work on November 2, the four people on the
swing shift bike crew had been moved to other jobs or
shifts. Bradford was told by Phelps that this was tempo-
rary, as the Company needed time to fix the bicycle
molds and get ready for the next bicycle contract, at
which time the swing shift would start producing bicycle
frames again.
On November 6, Bradford arrived at work at 3 p.m.
Hurley summoned Bradford and Smith to the conference
room. Also in the room were Hurley, Phelps, and an em-
ployee by the name of Jo Jo. Phelps said that it was the
time of year that they needed to let some people go; that
they hated to let people go, especially people like the
three of them who made the Company money and were
good workers; but that it had been decided that they
were being included among the group to be laid off.
Bradford asked ' why he was included and Phelps sug-
gested that maybe it was Bradford's attitude. He added
that it could possibly be because of a past misunderstand-
ing that Bradford had with Hurley.6 During persistent
5 Smith corroborated Bradford 's testimony in this regard.
6 It appears that at some point after Bradford was made crew chief of
the swing shift bicycle crew, he and Hurley had a disagreement regard-
mg how many bicycle frames could be fabricated on the swing shift each
day. Thus, according to Bradford , Hurley would assure higher manage-
Continued
AMERICAN POLY-THERM CO. 1059
questioning by Bradford, Phelps admitted that he did not
know exactly why Bradford was included in the layoff.
Then, according to Bradford, both Phelps and Hurley
stated that they had gone to Weatherly twice in order to
get him to change his mind about laying off both Brad-
ford and Smith because they felt Weatherly was making
a big mistake.7
Thereafter, Bradford was requested to fill out an "Em-
ployee Exit Interview Form." Bradford listed his super-
visor as Don Hurley; his starting salary as $5.50 per hour
and his ending salary as $8.95 per hour; and, under the
heading "Reasons For Leaving" he checked the form in-
dicating that he was being laid off for lack of work, and
added the words "unknown, other reasons involved not
clearly specified."
2. Smith's testimony
Richard Smith began working for the Respondent in
October 1986 and performed production work on vari-
ous aerospace plastic products.
Smith testified that in about August, during a period
when OSHA was inspecting the Respondent' s premises,
he happened to see Weatherly in the breakroom. Smith
asked Weatherly how he was doing, and Weatherly re-
torted, "Spiritually, mentally, or physically?" Then he
went on to say that he was not doing too well mentally;
that he was okay physically; and was just fine spiritually.
Weatherly then added, "If I could just get OSHA off of
my back, I'd be doing great," and further stated that "he
wished a couple of OSHA people would just die."8
Bradford was the safety committee representative on
the swing shift. Paula Frederiichs, personnel and safety
officer, was chairman of the committee. Smith toured the
plant with these individuals on one occasion, and pointed
out some of the safety hazards that he noticed. On an-
other occasion Smith told Al Yeatts , maintenance man-
ager, that an electrical panel was not hooked up correct-
ly and needed to be fixed in order to prevent a fire or
damage to electrical equipment. Yeatts asked Smith if he
knew how to fix the panel. Smith said that he did, and
thereafter corrected the problem after Yeatts ordered the
parts that Smith said he needed.
Smith testified that in May or June, when OSHA in-
spectors were in the plant, Hurley instructed him not to
talk to the inspectors or disclose any information and, in
fact, to stay away from them altogether.
Smith further testified that in mid-October Hurley ap-
proached him and said that either Weatherly or Alfred
Yeatts, maintenance manager, had asked him to confront
Smith about an electrical panel cover in the machine
shop that had been removed, and find out whether Smith
had taken any pictures of it and had sent them to OSHA.
Smith replied that he would not consider doing some-
thing like that.
ment that the swing shift could produce more bicycle frames than Brad-
ford believed was feasible , and Bradford maintained that Hurley 's expec-
tations were unreasonable.
T While the employee named Jo Jo was present during this discussion,
it appears that he was not a participant in the conversation and that his
layoff was not unexpected.
S Bradford, who was in the breakroom at this time, and who overheard
this conversation, corroborated Smith's testimony in this regard.
Smith testified that sometime during the month of Oc-
tober, Hurley told him that there was going to be a
layoff and that Smith should not worry because there
was no way Hurley could afford to lose him. Hurley also
said that Bradford would not be laid off, and added that
he could not afford to lose Bradford either.
Smith testified that at about 3:20 p.m. on November 6
Hurley called Smith and Bradford into the conference
room. Phelps and Jo Jo were also present. Phelps said
that he hated to let people go who had made money for
the Company, and that although they had done a fine
job, the Company did not need their services any longer.
Smith's testimony is similar to that of Bradford's regard-
ing what was said at the meeting. Hurley, according to
Smith, said that he had tried twice to get their jobs back,
but that Weatherly would not reconsider, and the fact
that he had to be in the meeting and advise them that
they would no longer be working there made it the
worst day of his life.
After the meeting Smith went to gather his tools and
belongings. Hurley approached him and asked whether
Smith would return to work if Hurley could get his job
back. Smith said yes. Hurley said:
.. . that there was nothing he could do about
Mike's job. Mike had done spent his time there.
And the reason I was being let go right now was
because Mike and I were friends, and because of
the-Hal's belief that we were involved with calling
OSHA and different environmental agencies, safety
hazards and problems throughout the shop.
That it would be best that we were both let go.
And if I was to stay with the company, that it
could cause problems for the company in the future.
He told me that Hal Weatherly had said to give
it two, three, days and if Don [Hurley] felt like he
still needed me to come back to work for him, that
they would reconsider and he could possibly get
my job back.
And Don would call me within three days and
let me know when I was to come back to work.
Smith called Hurley on Tuesday' of the following
week and inquired about his job. Hurley said that Weath-
erly would not change his mind, and there was nothing
Hurley could do.
3. Weatherly's testimony
Haldon Weatherly, president of the Respondent, testi-
fied that the work force is subject to periodic layoffs- Be-
cause of a lack of work, it became necessary to lay off 18
employees in November. This decision was made on No-
vember 2 or 3, at which time , according to Weatherly,
Phelps asked his supervisors to make recommendations
in this regard. Weatherly and Ed Phelps selected the par-
ticular employees who were to be laid off on November
5 or 6. They looked at each of the approximately 70 pro-
duction employees, and, apparently, 20 additional em-
ployees who were employed in other areas. In determin-
ing who would be laid off Weatherly and Phelps consid-
ered each employee's productive potential "in the sense
1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that, over the next 3 years, who can make the most
money for the company." According to Weatherly, the
selection process was very subjective; no records or em-
ployee personnel files were reviewed, and he and Phelps
probably spent less than 3 minutes per employee in de-
ciding whether the individual would be included in the
layoff.
Weatherly said that seniority does play a factor in se-
lecting employees for layoff and "the truth is we very
very seldom lay off anybody that is there for more than
a year or two. It's rare."
At the time of the layoff Weatherly did consider the
possibility of moving employees around to different jobs,
but he does not know whether Smith or Bradford were
considered for other production positions. When the
swing bicycle shift was eliminated, certain employees
who had less seniority than Smith and Bradford were
moved to another shift.
Weatherly testified that Bradford was laid off because
it was determined that over the next 3 years he probably
would not be as productive or profitable to the Compa-
ny as other people. In this regard, Weatherly testified
that he had previously been advised that Bradford had
approached Lee Mize, a leadman , in about January, and
had asked Mize whether he was interested in assisting
Bradford in starting up a business to produce a product,
Ardell, used for making computer chips, which the Re-
spondent was manufacturing. In fact, Weatherly had
spoken to Bradford about this in September when he was
placed in charge of the bicycle crew. At that time Brad-
ford told Weatherly that he had not been serious about
producing Ardell on his own, and said that it was a big
joke.9
Weatherly was also advised, prior to the time Brad-
ford was placed in charge of the bicycle crew, that
Bradford had approached Richard Hollingsworth, then
vice president of engineering for Cycle Composites, the
company for which the Respondent was manufacturing
the bicycle frames, and suggested to Hollingsworth that
Bradford was interested in setting up a facility to manu-
facture the frames and take the business away from the
Respondent. Hollingsworth reported this to the president
of Cycle Composites who, in turn, reported the conver-
sation to Weatherly.
Weatherly testified that he did not take Bradford seri-
ously about this matter because he "knew in my own
mind Bradford had neither the horse power, the brains,
the intelligence, the gumption or the integrity or the
character, to take a job like building bicycle frames away
from us. That was ludicrous. However, this was a dem-
onstration of his character, lack of it."
Weatherly further testified that although, as noted
above, he was previously made aware of Bradford's at-
tempt to begin making Ardell on his own, it was not
until after Bradford was laid off that he learned that
Bradford had approached Hurley about obtaining a list
of the Respondent's Ardell customers. Attempting to
steal a customer list, according to Weatherly, "would be
9 The testimony of Hurley and Maze regarding their conversations with
Bradford, who requested that they assist him in commencing a business
to manufacture Ardell, is set forth below.
the same thing as stealing your paycheck." Further, he
learned that shortly after being laid off, Bradford sought
employment with another bicycle manufacturer, TREK,
and that TREK was then involved in producing a bicy-
cle frame virtually identical to the Respondent's product.
Weatherly testified that this improper conduct by Brad-
ford insured that "There was no way he would be re-
hired."
Weatherly, asked why Smith was laid off, testified:
You know, I'm not really positive I can answer
that completely. We probably spent a little more
than a minute on it, because I remember Don
[Hurley] and Ed [Phelps] came and asked me to re-
consider him, but I know we-these things are ex-
tremely difficult.
And over the years I've developed somewhat of
an aloof attitude toward them, I guess . But in truth,
you pick out some names there and when it gets
right down to the nitty gritty, these are people, but
when it comes to the lay off part of it, it's a busi-
ness decision that the rest of us kind of survive. We
got to get rid of some people, cut down on the pay-
roll, and we pick out some names.
I would say that of the 18 people on there we
probably spent a minute or two on each one. The
general idea with each one though is what's he
going to do for us over the next three years.
And I wasn 't honestly-I don't remember that
much about Smith. I wasn't honestly in a position to
evaluate his work or anything else. You know, I
went by what other people told me.
Question: And that would have included informa-
tion you got from Mr. Phelps?
Yes.
At another point in his testimony, Weatherly said,
"My general opinion with regard to Smith was none,
plus or minus. Neither a good opinion nor a bad opin-
ion."
Weatherly testified that following the decision to in-
clude Smith in the layoff, Hurley approached him and
requested that he reconsider. According to Weatherly,
Hurley was very upset about the whole thing as this was
the first layoff Hurley had been involved in as a supervi-
sor; however, Hurley was "a little miffed" with Bradford
at the time and did not ask Weatherly to reconsider the
decision to lay off Bradford. Weatherly was unable to
recall what Hurley said about retaining Smith, but he
"made kind of a passionate plea, that Smith was a nice
guy." Weatherly chose not to reconsider, however, be-
cause he had already made up his mind. Weatherly testi-
fied:
I had already made up my mind. It's like when you
make a decision, you know. It may not always be
right, or whatever, but it was a decision that had
been made and I was willing to live by it.
Eleven more employees were laid off in December.
Unlike Bradford, whom Weatherly decided should not
be rehired primarily because of certain matters which
AMERICAN POLY-THERM CO. 1061
came to Weatherly's attention subsequent to November
6, Weatherly testified that Smith was subject to rehire
when business picked up. However, although employees
have been hired and/or rehired subsequent to the No-
vember and December layoffs, Smith has not been re-
called. When asked why, Weatherly testified:
Well, when we looked for employees, you make the
judgment, what's my best shot at getting a good
guy over the next three years.
I don't honestly know ... whether his name ever
came up .. .
Weatherly testified that there was no OSHA matter
pending in about August 1977, but failed to specifically
deny the aforementioned conversation and negative com-
ments about OSHA attributed to him, during the month
of August, by Smith and Bradford.
Weatherly first became aware of the OSHA complaint
against the Respondent on October 5 when two OSHA
inspectors appeared at the plant and presented him with
a complaint, filed by an unnamed employee, specifying
certain unsafe conditions in the plant. Weatherly appar-
ently at first refused to permit the investigators to inspect
the premises as, according to Weatherly, he had reason
to believe that there was no valid complaint from an em-
ployee, but rather that OSHA was being utilized by
some other government agency in an effort to harass the
Respondent.' ° However, after an initial meeting between
the OSHA representatives and representatives of the Re-
spondent, namely, Weatherly, Paula Frederichs, and
Alfred Yeatts, the inspectors did make a walking inspec-
tion of the plant. Although they found no validity to any
of the items in the complaint, the Company was cited for
two other minor violations, namely, an air nozzle with-
out a pressure release valve, and an extension cord with
a broken ground.
Weatherly, testified that he never personally attempted
to discover or instructed anyone else to investigate or
determine who was involved in filing the OSHA com-
plaint. Moreover, he believed that Bradford and Smith
were not involved because the individual who filed the
complaint specified certain chemicals which Smith and
Bradford would have no reason to use or be familiar
with. Weatherly testified that he showed the document
to all the members of the safety committee, including
Bradford, at which time he simply asked Bradford to
read it. Bradford read it and then asked if Weatherly be-
lieved that Bradford was responsible for the complaint.
Weatherly said no.
Weatherly testified that Bradford's testimony on this
point is "an absolute fabrication of lies," and did not re-
flect what actually transpired. He called in each of the
members of the safety committee, including Bradford, to
review the complaint because it was their duty to know
about these things. Weatherly denies asking Bradford to
confront Smith regarding the matter, and insists that
10 The parties stipulated that "there was and remains an ongoing inves-
tigation of governmental entities of American Poly-Therm with regard to
its disposal of hazardous substances commencing in July, 1986 "
Bradford never reported back to him about Smith's in-
volvement.
One of the items listed in the complaint had to do with
a safety matter that was brought to the attention of the
safety committee through Smith. On this point, Weather-
ly's affidavit states:
OSHA presented us with a list of complaints
which I showed to Bradford. I recognized that
these were some of the same complaints which
Richard Smith had made to the maintenance super-
visor, Al Yates.
Yates had told me that Smith had talked to him
about these complaints earlier. Smith had wanted to
work in maintenance but Yates did not want him.
However, on about October 8th, I said to Brad-
ford that the list sure looked like the kinds of things
that Smith had been complaining about.
And I told Bradford that if Smith had a com-
plaint, it would be more productive for him to
come to me about it.
4. Hurley's testimony
Donald Hurley became employed by the Respondent
on April 4, 1986. In November 1986, he was promoted
to "supervisor" or "crew leader" or "leadman" I' on the
swing shift, at which point his wages were increased
from $6.50 to $9.50 per hour. He became the highest
ranking employer representative at the plant on the
swing shift except on occasions when Weatherly or
Phelps would remain at the plant after about 4 p.m. At
about the time of the November 6 layoff there were
about seven other people on the shift, including Smith
and Bradford.12
Hurley testified that 'while he has no authority to hire,
lay off, recall, transfer, promote, or grant wage increases
to employees, he does have the authority to recommend
such action to Phelps or Weatherly. In the event of
layoff he is consulted 'and asked to make recommenda-
tions concerning the employees who, in his opinion,
should be retained or laid off. His recommendations are
subject to the approval of Phelps and Weatherly, who
make the final decisions on all personnel matters. On one
occasion, following his, recommendation to Phelps that a
certain employee be terminated, the employee was,, in
fact, terminated.
Although Hurley testified that he spends about 70 to
90 percent of his workday performing actual production
work, both Smith and Bradford estimated that most of
Hurley's time is involved with administrative or supervi-
sory matters, and that his actual production work occu-
pies only about 20 to 30 percent of his time.
11 Hurley's supervisory status is an issue in this proceeding . Through-
out the testimony of the various witnesses for the Respondent, including
Hurley's testimony, the position occupied by Hurley at all times material
was variously referred to as that of supervisor, or crew leader, or lead-
man.
12 It appears that prior to October there were a total of about 12 or 13
individuals on the swing shift, four of whom worked on the bike crew.
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
One of Hurley's duties involves evaluating the work of
employees on the swing shift and in this regard he pre-
pares written evaluations of their work performance. His
January 1987 evaluation of Bradford reflects that he
gave Bradford numerical ratings of 8 or 9 on each of the
10 performance criteria. x a While a numerical rating of
"10" is the highest, Hurley testified that it was not until
about March 1989 that he ever gave a 10 to an employ-
ee. On Bradford's evaluation form, under comments,
Hurley wrote:
He keeps looking for new ways to cut cost and im-
prove production methods. He helped with the new
method of molding the arrestor gear. His ideas with
the diaphragms were excellent. Mike would make a
good supervisor.
He also evaluated Smith in January 1987. He gave
Smith all 8s and 9s, and Smith's total score was slightly
higher than Bradford's. Under comments, Hurley states:
Richard [Smith] has gone beyond 100% efficiency
many times on certain jobs during the past several
months. I assign him most of the new jobs due to
his ability to catch on fast and that I know the job
will be done right.
Hurley also maintains the Respondent's employee ab-
sentee reports. On March 13 Smith requested a voluntary
layoff. On the form entitled "Absence Record," Hurley
entered the notation, "Re-hire ok. Good worker." There-
after, when Smith phoned Phelps about coming back to
work, Phelps asked Hurley what he thought about rehir-
ing Smith. Hurley said he would love to have him back.
Smith was rehired.
Hurley testified that Bradford reported to him until
Bradford became swing shift crew leader of the bicycle
shop, after which time Bradford reported directly to
Phelps. However, prior to the November 6 layoff, Smith
was taken off the bike job because Hurley needed him on
the production line, and thereafter Smith reported direct-
ly to Hurley. Further, in October, when the swing shift
bike job had been temporarily discontinued, Bradford re-
mained on the swing shift and worked under Hurley's di-
rection.
Hurley denied asking either Smith or Bradford wheth-
er they were involved in making complaints to OSHA,
and never told Smith to stay away from the OSHA in-
spectors.
Hurley testified that, prior to the layoff, he never
promised Smith or Bradford that they would not be in-
cluded in the layoff because he did not know anything
about a layoff until he arrived at work at about 3 p.m. on
November 6, at which time he was told, during a meet-
ing with Weatherly and Phelps, that they were laying off
Smith and Bradford because of lack of work. Hurley did
not ask them to reconsider the decision to lay off Smith
until shortly after Phelps and Hurley left Weatherly's
office. Hurley then asked Phelps if there was a possibility
18 The 10 criteria are as follows: productivity, aptitude, potential, atti-
tude, attendance, loyalty, follow directions, accuracy, use of time, and
timely.
that Smith could stay on.14 Phelps, in turn, said all they
could do was ask Weatherly. Then both Hurley and
Phelps returned to Weatherley's office and asked if he
would reconsider the decision to lay off Smith. Weather-
ley said that he would not reconsider Smith "at this
time."
As a result of Weatherley's foregoing remark, Hurley
testified that he was left with the impression that later on
down the road when business started picking up again
there could be a chance of rehiring Smith. Immediately
after Bradford and Smith were advised of the layoff, he
told Smith that "Later on when we start picking up
maybe I'll be able to call you back." Further, he did ask
Bradford to "drop by and see us sometime ." At the time
of the layoff he believed that Smith and Bradford were
the best the Company could get, and did not know that
better employees were out there.
Weatherley never told Hurley that he believed that
Smith and Bradford had complained to OSHA, and
Hurley denies that he told Smith that he had been select-
ed for layoff because Weatherley had formed the opinion
that Smith had complained to OSHA.
Hurley testified that during the layoff meeting Brad-
ford wanted to know the reason for his layoff, and
Phelps said it was his attitude. Hurley agreed with
Phelps' assessment of Bradford, and testified that Brad-
ford is very argumentative and is reluctant to obey in-
structions.1 s
5. Phelps' testimony
Edward Phelps is the Respondent's producing manag-
er. Phelps testified that he and Weatherley reviewed the
individuals in the work force to determine who should
be laid off. Prior to this he discussed the matter "with
alot of the supervisors within our company." The em-
ployees who were retained were those employees who
were the most valuable to the Company in terms of
being the most loyal, hard working, and productive indi-
viduals; and who made money for the Respondent.
The decision that a layoff would be necessary was
made a week or so prior to November 6, and the list of
employees who were selected to be laid off was com-
piled about 3 days prior to that date. The meeting be-
tween Phelps and Weatherley, during which the 18 em-
ployees were selected for layoff, lasted about an hour.
Phelps testified that Bradford was selected for layoff be-
cause of his questionable loyalty to the Respondent, in
addition to an attitude problem which was evidenced by
his reluctance to follow orders or to work as a team
member without questioning the orders he was given.
There were no other reasons why Bradford was included
in the layoff, and Phelps testified that he "always felt
that Mr. Bradford was a productive worker and . . . that
14 Hurley testified that the reason he did not make a similar request to
retain Bradley was because Bradley was the crew leader of the bicycle
crew, and Hurley believed that Bradley worked directly for Phelps
rather than for him.
15 However, Hurley admitted that shortly after he had been placed in
charge of the swing shift he was asked about whether Bradford should be
promoted to crew leader, and said that at that time he believed would
make a real good crew leader, based upon the people there were to select
from.
AMERICAN POLY-THERM CO. 1063
he had a lot of potential, and this is one of the things
that I think we took into consideration when we appoint-
ed him a lead man." Phelps also testified, however, that
although Bradford's productivity was equal to employees
on the other shifts, there were problems with the quality
of his work on the bicycle job.
Bradford, was placed in charge of the bicylce crew on
the swing shift on September 8, and remained in that po-
sition until about the end of October, at which time bicy-
cle manufacturing on the swing shift was suspended.
Thus, Bradford was in charge of the bicycle crew for
about 7 weeks, during which time he reported directly to
Phelps.
According to Phelps, "Richard Smith, again, I think
was not considered, a long term loyal employee. He also
had some connection with the bicycle problem. He had
an attitude problem I felt as well." Asked to elaborate on
Smith's attitude problem, Phelps said, "Well, I think it
was just, I don't know, maybe a little his nature, but he
deemed [sic] to-he seemed to come across to me as a
little bit of defiance or he would flare once in a while."
Phelps testified that both Smith and Bradford were
very capable. He referred to Hurley as "their supervi-
sor," and referred to Smith as "one of [Hurley's] employ-
ees." Phelps testified that he "always talk[s] to the super-
visors of those people that I consider or, you know,
think that we may be laying off," and he acknowledged
that he did so prior to the November 6 layoff. In this
regard he stated that the recommendation of a supervisor
is very important and that "You have a pretty strong
reason to go against a supervisor's wishes."
Phelps testified that:
I know that with Mr. Smith, his supervisor wanted
me to reconsider him and I kind of felt somewhat
the same way. At times I had mixed feelings on
laying Richard off. And Don [Hurley] was really
promoting keeping him. And I said, well, we can go
and talk to Hal [Weatherly]. And as I recall, we
went and talked to Hal and Hal made the decision
to go ahead and include him in the lay off with res-
ervations that maybe at a later date we could bring
him back.16
6. Bradford's involvement with Ardell
The Respondent, sensitive to the possibility of its pro-
prietary products or processes becoming known to its
competitiors, required employees to execute an "Em-
ployee Agreement" as a condition of employment. Brad-
ford executed the agreement on January 16, 1986. The
first part of the agreement, entitled "Proprietary Prod-
ucts," is as follows:
I agree not to disclose, or to allow by my actions to
become known, either the details or the general
nature of any chemical formulations or processing
techniques developed or in use at American Poly-
Therm Company to any person or persons not in
the employ of American Poly-Therm Company
without the written permission of an officer of
American Poly-Therm Company. This portion of
the agreement shall remain effective five years after
termination of my employment with American
Poly-Therm Company.
The second portion of the agreement is entitled "Inven-
tions and Discoveries," and requires the employee to dis-
close the details of any invention or discovery the em-
ployee may make during the course of employment, and
to assign to the Respondent all rights to such inventions
or discoveries.
Hurley testified that sometime between June and No-
vember 1987, Bradford asked Hurley if he had access to
a list of the customers that were purchasing "Ardell"
from the Respondent. Ardell is a proprietary plastic
product the formula or manufacturing process for which
is apparently, confidental and is not to be divulged; none
of the Respondent's competitors manufacture this prod-
uct. Hurley said that he did have access to a customer
list, and Bradford asked for a copy of it, stating that
Bradford and either his brother or brother-in-law were
going to try to manufacture Ardell in a garage. Hurley's
testimony indicates that he was very surprised that Brad-
ford would make such a request, and he told Bradford
that he would "absolutely not" provide Bradford with
the list of customers "because I do have my own scru-
ples." Hurley did not report this incident to management,
however, because he really did not know whether Brad-
ford was serious or not.
Lee Mize, a leadman, testified that in about December
1986 or January 1987, he was approached by Bradford
regarding a "business proposition." Bradford said that he
was looking for a backer to help finance a business to
make Ardell, that he had done a lot of research and had
been in contact with the people who manufactured the
raw material, and "that he had seen the records and the
files and how profitable it was." Mize further testified
that it was not difficult to obtain a list of the Respond-
ent's customers who purchased Ardell, and that all the
supervisors had access to such a list. Mize believed that
Bradford was being "underhanded" and was attempting
to "undermine, the company." He reported the matter to
Phelps the following day.
Bradford's testimony regarding the foregoing conver-
sation with Mize is as follows. The conversation took
place in the winter of 1986. Bradford happened to relate
a previous conversation with Hurley about how easy it
would be to produce Ardell in a garage with a press. 117
Thereafter, he was questioned about this by Phelps, and
assured Phelps that he had no intention of attempting to
produce Ardell on his own. Phelps told him not ' to
worry and, to forget about the matter. Bradford specifi-
cally denies , however, discussing with Mize any possibil-
ity of obtaining ,financing for the venture or attempting
to manufacture the product on his own.
Bradford testified that he never attempted to obtain a
list of Ardell customers from the Respondent. When
asked whether, in the summer of 1987, he asked Hurley
16 The record shows that two other individuals who were laid off on
November 6 were subsequently rehired.
17 Bradford testified that he had casual conversations with Hurley on
three or four occasions about how easy it was to produce Ardell.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
whether Hurley could obtain a list of the Respondent's
Ardell customers, Bradford testified as follows:
A. I think he had mentioned he could get it, but
we never pursued anything like that, no.
Q. When he mentioned that, was that in direct
response to your questioning if he could get it?
A. Not that I recall.
Q. In fact, didn't you ask him if he could get his
hands on a copy of the customers list?
A. I think he mentioned he said he could.
Analysis and Conclusions
Hurley was in charge of some 8 to 12 employees on
the swing shift, and during the great majority of that
time there was no one with greater authority at the Re-
spondent's facility. He directed the work of employees,
evaluated their work performance, and recommended
that employees be discharged, laid off, and rehired.
Indeed, Plant Manager Phelps testified that he discussed
the then forthcoming November 6 layoff with Hurley
and requested that Hurley evaluate the employee and
participate in the selection of the employees who should
be retained or included in the layoff. Further, according
to Phelps, the recommendation of a "supervisor," as
Phelps sometimes referred to Hurley, "carries consider-
able weight," and "you have to have a pretty strong
reason to go against a supervisor's wishes." Contrary to
the position of the Respondent , it is clear that Hurley, at
all times material , has been a supervisor within the mean-
ing of Section 2(11) of the Act, as alleged. I so fmd.
It is admitted that Supervisor Hurley did not want
Smith to be included in the layoff. In fact, according to
Weatherly, who testified that he had no opinion one way
or the other regarding Smith, Hurley was very upset that
Smith had been selected and made a "passionate plea" to
Weatherly that he reconsider his decision. Weatherly tes-
tified that even though he was not in a position to evalu-
ate Smith, he had already made up his mind, and "it was
a decision that had been made and I was willing to live
with it," despite the fact that, according to Weatherly,
both Phelps and Hurley asked that he reconsider. Nor
was Weatherly able to recall any specific discussion of
Smith with Phelps during the prelayoff selection process
in Weatherly's office.
Phelps testified that he felt much the same way about
Smith as Hurley did, although he also testified that he
had "mixed feelings" about Smith. However, the record
is clear that despite his alleged "mixed feelings," he felt
strongly enough about the matter to return to Weatherly,
along with Hurley, in order to importune Weatherly to
reconsider his decision. Nor does the testimony of either
Weatherly, Phelps, or Hurley indicate that Phelps voiced
any reservations about his apparent agreement with
Hurley. Indeed, as noted above, Weatherly's testimony in
this regard indicates only that both Phelps and Hurley
shared the same opinion, namely, that Weatherly was
making a mistake by laying off a valuable employee
whom Hurley emphatically believed should be retained.
Under these circumstances, it defies credulity that
Weatherly, who maintains that he had no particular
thoughts about Smith one way or the other, would sum-
manly dismiss the recommendations of both his plant
manager and Smith's immediate supervisor. Weatherly's
rationale for so disregarding their joint recommendation
to retain Smith, namely that even though Weatherly may
have been wrong he was willing to live with his deci-
sion, simply makes no sense in this context and fails to
comport with any conceivable and lawful business justifi-
cation. Moreover, it strongly indicates that Weatherly
was motivated by other considerations.
While Hurley testified that he was not aware of the
layoff until the afternoon of November 6, immediately
preceding the time it was implemented, Phelps' testimo-
ny conclusively demonstrates that this was not the case.
Indeed, Phelps testified that he met with Hurley prior to
the impending layoff and solicited Hurley's recommenda-
tions about the employees under his supervision.
I credit the testimony of Smith, who impressed me as
a forthright witness with an accurate recollection of the
events. I also credit the testimony of Bradford to the
extent indicated. Thus, I fmd that Weatherly did coer-
cively interrogate Bradford regarding his involvement
with the OSHA complaint on or about October 15, and,
upon Bradford's denial of any knowledge of the matter,
did direct Bradford to ascertain whether Smith was re-
sponsible for the complaint. Thereupon, Bradford fol-
lowed Weatherly's order, confronted Smith about the
matter, and reported back to Weatherly.
Thereafter, I fmd that Smith was confronted by
Hurley, who told him that he, too, had been instructed
by Weatherly or Yeatts to ascertain the extent of Smith's
involvement with the OSHA complaint.
I do not credit Weatherly's assertion that he was
merely attempting to advise Bradford of the matter be-
cause of Bradford's membership on the safety committee.
Thus, the conversation, as described by Bradford, whom
I credit on this point, was not merely utilized for the
purpose of informing Bradford of possible safety matters
which someone had brought to the attention of OSHA,
but rather was accusatory in nature . As such, it was rea-
sonable for Bradford and Smith, who was in turn interro-
gated by Bradford pursuant to Weatherly's instructions,
to assume that the interrogation was for the purpose of
discovering the identity of the individuals responsible for
the complaint in order that the Respondent could take
disciplinary action against them. Similarly, I do not
credit Hurley's denial that he spoke to Smith about the
OSHA matter. I fmd that Weatherly's interrogation of
Bradford, Weatherly's instruction to Bradford to ascer-
tain Smith's involvement in the matter, and Hurley's in-
terrogation of Smith, each constitute individual instances
of coercive interrogation. E.B. Malone Corp., 273 NLRB
78 (1984); Monarch Water Systems, 271 NLRB 558
(1984).
I find that sometime in October, Hurley did advise
both Smith and Bradford of a layoff in the near future,
and did inform them that because of their value to the
Company they had no need to worry about being laid
off.
I further find that immediately after Smith and Brad-
ford were laid off on November 6, Supervisor Hurley
told Smith:
AMERICAN POLY-THERM CO. 1065
... that there was nothing he could do about
Mike's job. Mike had done spent his time there.
And the reason I was being let go right now was
because Mike and I were friends, and because of
the-Hal's belief that we were involved with calling
OSHA and different environmental agencies, safety
hazards and problems throughout the shop.
That it would be best that we were both let go.
And if I was to stay with the company, that it
could cause problems for the company in the future.
He told me that Hal Weatherly had said to give
it two, three days and if Don [Hurley] felt like he
still needed me to come back to work for him, that
they would reconsider and he could possibly get
my job back.
And Don would call me within three days and
let me know when I was to come back to work.
Thus, I find that Hurley told Smith that the discharge
of both Smith and Bradford was because of Weatherly's
belief that they had filed the complaint with OSHA. Fur-
ther, I find that, prior to the layoff, Smith and Bradford
were told by Hurley that they had nothing to worry
about and would not be included in the layoff because of
their value to the Company; and that they were advised
by Phelps and Hurley, immediately after the layoff, that
on two separate occasions they had attempted to get
Weatherly to change his mind about laying the both of
them off.18
Abundant record evidence shows that both Smith and
Bradford were considered to be highly qualified employ-
ees who were capable of performing various production
jobs throughout the Respondent's plant. Further, the
record evidence clearly demonstrates that any alleged
deficiencies which the two employees may have exhibit-
ed during their employment with the Respondent and
which the Respondent now advances as reasons for their
respective layoffs, such as their attitude, or reluctance to
follow orders, or the production of excessive numbers of
defective bicycle frames, or, in the case of Bradford, his
alleged unauthorized experimentation with innovative
processes or time-saving methods of producing bicycle
frames 119 or his desire to start his own bicycle frame
is I do not credit the testimony of Hurley, Weatherly, and Phelps to
the effect that Weatherly was requested only to reconsider the layoff of
Smith and not Bradford
is Much of the record evidence in this proceeding concerns the pro-
duction of bicycle frames: the quantity and quality of the frames pro-
duced on the swing shift in comparison with other shifts , the various pro-
cedures involved in each phase of the production process, the defects
found in various frames due, it is alleged , to Bradford's failure to proper-
ly oversee his crew, the number of frames that had been produced in the
past and were contracted to be produced in the future , and, in general, all
aspects of the bicycle operation , even including whether the amount of
bicycle frame work warranted the temporary discontinuation of bicycle
frame production
I conclude that an analysis of this evidence is unnecessary. It is suffi-
cient that the record evidence demonstrates , as I find, that whatever al-
leged deficiencies may have been exhibited by Bradford or Smith during
their employment with the Respondent , such deficiencies were unrelated
to the Respondent's decision to include them in the layoff.
business and to produce Ardell, were well known to the
Respondent prior to the time Respondent's supervisors
attempted to cause Weatherly to retain the employees in
the Respondent's employ. Given the credible record evi-
dence in this posture, together with the absence of any
convincing explanation by Weatherly for refusing to
accept the recommendations of Plant Manager Phelps
and Supervisor Hurley, I conclude that the Respondent
has not demonstrated either Smith or Bradford were in-
cluded in the layoff for legitimate reasons.
On the basis of the foregoing credited testimony, I find
that the layoffs or discharges of both Smith and Brad-
ford were motivated by their suspected protected con-
certed activity in filing a complaint and causing an inves-
tigation of the Respondent by OSHA. Therefore, by
laying off or discharging the employees the Respondent
has violated Section 8(a)(1) of the Act as alleged. Mon-
arch Water Systems, 271 NLRB 558 (1984); Daniel Inter-
national Corp., 277 NLRB 795 (1985); Meyers Industries
(I), 268 NLRB 493 (1984); Meyers Industries `(II), 281
NLRB 882 (1986).
The Respondent, citing NLRB v. Wright Line, 662
F.2d 899 (1st Cir. 1981), the rationale of which was af-
firmed by the Supreme Court in NLRB v. Transportation
Management Corp., 462 U.S. 393 (1983), maintains that,
assuming arguendo the existence of an unlawful reason
for the layoff of Smith and Bradford, it has nevertheless
met its Wright Line burden of establishing that they
would have been laid off in any event for legitimate rea-
sons. For the reasons enunciated above, it is clear, and I
find, that Respondent has failed to meet its burden in this
regard.
The Respondent further maintains that even if Brad-
ford's layoff ' was motivated by its belief that he was re-
sponsible for the OSHA complaint and investigation, the
Respondent thereafter became aware of misconduct and
disloyalty on the part of Bradford which was sufficiently
serious to preclude his reinstatement, Thus Weatherly
testified that following the layoff of Bradford, he was
particularly disturbed to learn that Bradford had attempt-
ed to obtain from Hurley a list of the Respondent's
Ardell customers.
I credit the testimony of Hurley and Mize regarding
Bradford's entrepreneurial activity in investigating the
prospects of becoming a manufacturer of Ardell, and in
attempting to determine whether he could obtain a list of
the Respondent's Ardell customers. Mize immediately re-
ported Bradford's solicitation to Phelps; and given Re-
spondent's concerns regarding the dissemination of confi-
dential proprietary information, it is difficult to compre-
hend why Hurley, who impressed me as a dedicated,
management-oriented individual, did not similarly report
Bradford's solicitation of him.
However, assuming arguendo the accuracy of Hurley's
testimony in this regard, it is clear that Bradford's inter-
est in the possibility of manufacturing Ardell was known
to management prior to early September. And it is rea-
sonable to assume that, under these circumstances, the
Respondent would have been very concerned about 'the
possibility that Bradford, in developing a market for,the
product, would necessarily approach the Respondent's
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
established customers. Yet, as noted above, in early Sep-
tember, Bradford was given a substantial raise and pro-
moted to leadman, after having assured Phelps and
Weatherly that he had no intention of going into business
for himself in competition with the Respondent.
Further, there is insufficient evidence to show that,
subsequent to his promotion, Bradford reneged on his
promise or exhibited any further interest in the manufac-
ture of Ardell. Thus, according to the imprecise testimo-
ny of Hurley, his conversation with Bradford regarding
the customer list occurred sometime between June and
November; and when asked by Respondent's counsel
whether the conversation occurred during the summer of
1987, Bradford replied in the affirmative. On the basis of
the record evidence, I find that the Respondent has not
demonstrated that Bradley continued to engage in any
disloyal conduct subsequent to his promotion.
Thus, in summary, I conclude that the Respondent has
not demonstrated that Bradford's attempt to obtain a cus-
tomer list was somehow a more serious breech of con-
duct or ethics than his solicitation of Mize as a financial
backer, during which conversation he told Mize that he
had seen certain of Respondent's books and files; that
after learning of Bradford's solicitation of Mize, the Re-
spondent condoned or forgave Bradford's conduct;20
and that, contrary to the Respondent's position, the fore-
going activity on the part of Bradford in attempting to
obtain- a customer list is insufficient to preclude his rein-
statement because it is the very type of activity which
the Respondent earlier condoned.
Finally, the Respondent maintains that Bradford
breached his employment agreement wherein he agreed
not to disclose any chemical formulations or processing
techniques to outside individuals. In this regard the Re-
spondent learned that following his discharge, Bradford
applied for a job with the TREK Bicycle Corporation in
Wisconsin. TREK, at that particular time, was in the
process of producing a bicycle frame very similar to the
Respondent's product, and the Respondent, understand-
ably, was concerned that Bradford intended to furnish
TREK with proprietary information. The Respondent
wrote to TREK about this matter on December 18, and
received a reply from TREK as follows:
Mike [Bradford] contacted Trek about employ-
ment with us about a month ago. We decided not to
do business together at the present time.
Mike offered his employment at American Poly-
Therm in support of his claim to have experience in
working with composite materials. No proprietary
information was offered or solicited.
From the foregoing, I conclude that the evidence prof-
fered by the Respondent is insufficient to establish that
Bradford approached TREK with the intent of divulging
any proprietary information. Rather, the fact that Brad-
ford contacted TREK for employment merely shows
that he was interested in capitalizing upon his experience
and skills in order to obtain a job, and the employment
20 Indeed, to not only retain but moreover to promote an employee
under these circumstances underscores Bradford's perceived value to the
Company.
agreement which Bradford executed certainly does not
preclude him from seeking employment with any em-
ployer that may be engaged in the same industry, or
manufacture similar products, as the Respondent.
CONCLUSIONS OF LAW
The Respondent, American Poly-Therm Company,
Inc., is an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
By interrogating employees Richard Smith and Mi-
chael Bradford, and by discharging them on November
6, 1987, and thereafter failing and refusing to reinstate
them to their former or substantially equivalent positions,
the Respondent has violated and is violating Section
8(a)(1) of the Act, as alleged.
THE REMEDY
Having found that the Respondent has unlawfully in-
terrogated and discharged the said employees, the Re-
spondent shall be ordered to cease and desist from en-
gaging in such unfair labor practices, to offer employees
Richard Smith and Michael Bradford reinstatement to
their former or substantially equivalent positions of em-
ployment without loss of their seniority or any other
rights or privileges, and to make them whole for any loss
of earnings and other benefits resulting from their unlaw-
ful discharges.
Backpay is to be computed in accordance with the
Board's decision in F. W. Woolworth Co., 90 NLRB 289
(1950), with interest on such backpay to be computed in
accordance with the Board's decision in New Horizons for
the Retarded, 283 NLRB 1173 (1987).
The Respondent shall also be required to post an ap-
propriate notice attached hereto as "Appendix."
On these findings of fact and conclusions of law and
the on entire record, I issue the following recommend-
ed21
ORDER
Respondent, American Poly-Therm Company, Inc.,
Sacramento, California, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Interrogating employees with regard to their actual
or suspected concerted protected activity in filing com-
plaints with the Federal Occupational Safety and Health
Administration.
(b) Discharging employees because of their actual or
suspected concerted protected activity in filing com-
plaints with the Occupational Safety and Health Admin-
istration.
(c) In any like or related manner restraining or coerc-
ing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
21 If no exceptions are filed as provided by Sec. 102.46 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.
AMERICAN POLY-THERM CO.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer Richard Smith and Michael Bradford imme-
diate and full reinstatement to their former or substantial-
ly equivalent positions, without prejudice to their seniori-
ty or any other rights or privileges previously enjoyed,
and make them whole for any loss of earnings and other
benefits suffered as a result of their unlawful discharges,
in the manner set forth in the remedy section of this de-
cision.
(b) Remove from its files any reference to the unlawful
discharges and notify the employees in writing that this
has been done and that the discharges will not be used
against them in any way.
(c) 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 enable the Board or its agents to compute the
amount of backpay and the benefits due under the terms
of this Order.
(d) Post at its Sacramento, California facility copies of
the attached notice marked "Appendix."22 Copies of the
notice, on forms provided by the Regional Director for
Region 20, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt thereof, and be maintained
for 60 consecutive days thereafter, in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent 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 this Order what steps the Respondent
has taken to comply.
22 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 Nation-
al 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
1067
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 coercively interrogate employees in an
effort to determine the identity of employees who may
have filed complaints against the Company with the Fed-
eral Occupational Safety and Health Administration.
WE WILL NOT discharge employees in retaliation for
their actual or suspected concerted protected activity in
contacting the Federal Occupational Safety and Health
Administration, or any other governmental agency, re-
garding safety or health matters in the workplace.
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of the rights
guaranteed them by Section of the Act.
WE WILL offer employees Richard Smith and Michael
Bradford reinstatement to their former or substantially
equivalent positions of employment, without prejudice to
their seniority or any other rights and privileges previ-
ously enjoyed, and WE WILL make them whole, with in-
terest, for any loss of earnings and other benefits suffered
as a result of their discharge.
WE WILL remove from our files any reference to the
discharges of these individuals, and notify them in writ-
ing that this has been done and that the discharges will
not be used against them in any way.
AMERICAN POLY-THERM COMPANY, INC.