Carrier Corp.

National Labor Relations Board - Board Decisions

Dec 6, 2001

336 N.L.R.B. 1141 (N.L.R.B. 2001)

CARRIER CORP. 1141
Carrier Corporation and Kenneth W. Crosby. Case
28–CA–16727.
December 6, 2001
DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
LIEBMAN
AND WALSH
On August 10, 2001, Administrative Law Judge Lana
H. Parke issued the attached decision. The Charging
Party filed exceptions and a supporting brief,1 and the
Respondent filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 and to adopt the recommended
Order.

1 No exceptions were filed to the judge’s findings that the Respon-
dent violated Sec. 8(a)(1) by equating protected concerted activity with
disloyalty to the Respondent, by making implied threats of reprisals to
employee Kenneth Crosby because he engaged in protected concerted
activities, and by prohibiting employee Warren Winchester from talk-
ing with Crosby about protected concerted activities. In addition, no
exceptions were filed to the judge’s dismissal of the allegation that
Supervisor Anthony Derfoldi threatened Crosby in violation of Sec.
8(a)(1).
2 The Charging Party has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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.
In addition, some of the Charging Party’s exceptions imply that the
judge’s rulings, findings, and conclusions demonstrate bias and preju-
dice. On careful examination of the judge’s decision and the entire
record, we are satisfied that the Charging Party’s contentions are with-
out merit.
3 In adopting the judge’s finding that the Respondent did not violate
Sec. 8(a)(1) when it laid off Crosby, we find it unnecessary to pass on
the judge’s finding that the General Counsel failed to satisfy his initial
burden under Wright Line, 251 NLRB 1083, 1089 (1980), enfd. 662
F.2d 899 (1st Cir. 1981), cert. denied 455 U.S. 989 (1982), to establish
that Crosby’s protected concerted activities were a motivating factor in
the Respondent’s decision to lay him off. Even assuming arguendo that
the General Counsel met his threshold burden under Wright Line, we
conclude that the Respondent has demonstrated that it would have laid
off Crosby even in the absence of such activities. In so concluding, we
particularly rely on the judge’s finding that credited testimony estab-
lishes a “concrete and lawful reason for selecting Crosby for layoff,”
namely his insubordinate refusal at the July 5, 2000 meeting to ac-
knowledge the Respondent’s authority to assign work to employees. In
addition, we rely on the credited testimony establishing that Crosby had
more customer complaints than other employees, which provided the
Respondent with a reasonable basis for believing that Crosby’s work
performance was worse than that of the other employees. For these
reasons, we agree with the judge that the complaint should be dismissed
insofar as it alleges that Crosby’s layoff was unlawful.
Chairman Hurtgen would adopt the judge’s decision in its entirety,
including her finding that the General Counsel failed to establish that
Crosby’s protected concerted activities were a motivating factor in the
Respondent’s decision to lay him off.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Carrier Corporation, Las
Vegas, Nevada, its officers, agents, successors, and as-
signs, shall take the action set forth in the Order.

Benjamin W. Green, Esq., for the General Counsel.
Ron Klepetar, Esq., of Los Angeles, California, for the Re-
spondent.
Randy Rumph, of Las Vegas, Nevada, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LANA H. PARKE, Administrative Law Judge. This case
was tried in Las Vegas, Nevada, on June 1 and 13, 2001. The
charge was filed by Kenneth W. Crosby (Crosby) on September
7, 2000,1 alleging that Carrier Corporation (Respondent) vio-
lated Section 8(a)(1) of the Act. The complaint was issued on
January 30, 2001, and amended at the hearing.
The issues to be addressed are whether Respondent threat-
ened employees with unspecified reprisals for engaging in pro-
tected concerted activities, threatened employees with dis-
charge for refusing to engage in union activity, threatened em-
ployees with layoff because of their protected concerted activi-
ties and their participation in Board proceedings, and laid off
Crosby because he engaged in protected concerted activity and
to discourage employees from engaging in protected concerted
activity.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel, Respondent, and the Charging Party, I
make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, is engaged in the service of heat-
ing, ventilation, and air-conditioning components in the Las
Vegas area with a facility in Las Vegas, Nevada, where it de-
rived gross revenues in excess of $500,000 from the conduct of
its business operations in the 12-month period ending Septem-
ber 7. Respondent admits and I find that it is an employer en-
gaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.2
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
From its Las Vegas facility, Respondent primarily services
installed industrial air-conditioners, employing service techni-
cians (mechanics) who are represented by the United Associa-
tion of Journeymen and Apprentices of the Plumbing and Pipe-
fitting Industry of the United States and Canada, AFL–CIO,
Local 525 (the Union). The air-conditioning systems serviced

1 All dates are in 2000 unless otherwise indicated.
2 Where not otherwise noted, the findings are based on the pleadings,
the stipulations of counsel, and/or unchallenged credible evidence.
336 NLRB No. 120
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1142
by Respondent fall into two main categories: unitary (used in
smaller buildings) and applied (used in large systems of over
100 tons and involving centrifugal chillers.) The union contract
describes four technician classifications, including mechanical
service journeymen, servicemen, and apprentices. Journeyman
technicians primarily perform applied work and receive a much
higher pay rate than the servicemen who primarily do unitary
work. Servicemen receive 65 to 70 percent of the journeymen
rate.
At all times relevant, Van Hoppler (Hoppler) was the terri-
tory service manager (branch manager) of Respondent, and
Anthony (Tony) Derfoldi (Derfoldi) was the service supervisor,
both stationed at Respondent’s Las Vegas facility.3 In authority
over Hoppler was Kal Hassaneih (Hassaneih), regional man-
ager, whose offices were in City of Industry, California. Bruce
Burton, corporate manager (Burton) was Hassaneih’s superior.
In 2000, Respondent experienced a downturn in production.
Hassaneih testified that business decreased dramatically after
the first of the year as demonstrated by the Las Vegas office’s
monthly financial reports, which he regularly reviewed. The
January report showed a plan (expectation) deviation of minus
$23,394, in February a plan deviation of minus $119,578, in
March a plan deviation of minus $355,813, in April a plan de-
viation of minus $276,626, in May a plan deviation of minus
$248,506, and in June, a plan deviation of minus $406,060.4
According to Hoppler, in early 2000 Respondent was also try-
ing to move its service emphasis from applied work to unitary
work. By April, Hassaneih began pushing Hoppler to lay off
technicians to cut expenses. Hoppler testified that Hassaneih
talked to him many times about the need to reduce labor costs
in order to maintain profitability. Hoppler was reluctant to lay
off technicians, as it was difficult to get a good technician back
after a layoff. Hassaneih said he continued to press Hoppler to
lay off technicians throughout 2000 until Hoppler left Respon-
dent on December 8. The decision as to whom to lay off was
left with Hoppler.
Crosby worked as a journeyman technician for Respondent
from September 3, 1996, until his layoff on July 10. On May
24 through July 4, he was absent from work on medical leave.
At the time of his layoff, he worked on centrifugal chillers (ap-
plied) and unitary equipment.
In March and April, employees discussed with each other
their dissatisfaction with Hoppler’s management style. Crosby
drafted a letter dated May 1 (the complaint letter), which read:

To Whom It May Concern:

This notice is to inform you that the working conditions
under which Carrier Employees at the Las Vegas Branch
have been working under [sic] have become intolerable.

3 In December, Hoppler resigned to form his own air-conditioning
service company, and Derfoldi was promoted to branch manager.
4 Although less significant because Respondent did not expect its
branch offices to perform as well as or greater than the preceding year,
the monthly reports prior to Crosby’s layoff showed even greater defi-
cits there. The January report showed an income decrease of $518,644
from the previous year, in February a decrease of $792,614, in March a
decrease of $1,092,088, in April a decrease of $1,098,375, in May a
decrease of $1,033,247, and in June a decrease of $1,203,896.
This is due to the most part to the territorial manager Van
Hoppler’s extreme, abusive and aggressive style of super-
vising. Some employees have even received physical
threats.

We can no longer work under such intimidating manage-
ment. It adversely affects the productivity and morale of
the employees. We will be happy to present you with all
of the facts you need to support this complaint.

Crosby showed the letter to Warren Winchester (Winchester)
who signed it. Crosby asked Winchester to solicit signatures
from other employees. Winchester obtained signatures from
employees Jerry Carter (Carter), Ryan Webb (Webb), Ron
Haigwood (Haigwood), and Al Williams (Williams). When the
letter was returned to Crosby, he signed it and faxed it to corpo-
rate headquarters on May 15.5
The complaint letter was routed from Respondent’s corpo-
rate office to Hassaneih. Being very concerned about the letter,
he and Burton flew to Las Vegas the next day to meet with the
technicians. On May 18, Hassaneih and Burton convened a
meeting of all service technicians in Respondent’s conference
room at about 1 p.m. Hassaneih thanked employees for writing
the letter, saying that without it he would not know there was a
problem. Burton told employees that the corporate president
had received the complaint letter and that Respondent consid-
ered it a very serious matter. He said that Respondent would
take the proper measures to investigate and rectify problems.
Each employee was then invited to discuss which working con-
ditions he found intolerable, and Burton asked each employee,
in turn, if he had a problem currently with Hoppler. According
to Crosby, Winchester responded first and gave examples of
problems he had with Hoppler, as did Carter. Winchester testi-
fied that he talked about Hoppler’s mood swings. Haigwood
and Williams said they had no current problems with Hoppler.
Rick Sorenson, lead technician (Sorenson) said he had some
problems. Crosby complained that Hoppler sometimes asked
employees if they liked their jobs, which employees took as
implied threats. He also recounted episodes of Hoppler’s be-
havior while intoxicated, including an incident between Hop-
pler and Webb. When his turn came, Webb said he did not
want to talk about the incident as it had occurred over a year
before. Burton and Hassaneih asked whether employees had
observed Hoppler drinking on the job, which employees de-
nied.6 Crosby also complained that the two technicians who
5 Testimony was presented regarding the discussions of employees
prior to the preparation of the complaint letter and the specific conduct
of Hoppler that gave rise to employee dissatisfaction. As it is clear that
the actions of employees in discussing Hoppler’s management style and
drafting and signing the complaint letter constitute concerted protected
activity, I find it unnecessary to explicate the discussions or the com-
plaints, none of which reflect violations of the Act by Hoppler.
6 Respondent objected to the complaints by employees as hearsay.
Counsel for the General Counsel said the statements were not offered
for the truth of the assertions as to Hoppler’s conduct. The statements
were admitted as evidence of ongoing concerted protected activity. It is
unnecessary to the concerted protected nature of the employees’ com-
plaints to find that Hoppler was guilty of the accusations, and I make no
finding as to Hoppler’s conduct.
CARRIER CORP. 1143
had not signed the complaint letter (Jon Madden, shop steward
(Madden) and Sorenson) were receiving preferential treatment.
According to Madden, Crosby had more to say than any other
employee. Madden also testified that Burton and Hassaneih
said they had shown the complaint letter (with signatures re-
dacted) to Hoppler and discussed its details with him. They
told employees he had agreed to take anger management
classes. Hassaneih assured employees that no one would be
fired because of the complaint letter.
Following the meeting, Burton and Hassaneih talked to em-
ployees in the shop and in the parking lot. Crosby testified that
he formed part of a group including the two corporate officials
in the parking lot. Burton said that no employee would be laid
off or terminated because of the complaint letter. Crosby said
he felt they should terminate Hoppler to avoid likely retaliation.
Hassaneih said there would be no retaliation because he would
be monitoring all that went on in the office. Hassaneih gave
employees his cellular number and encouraged them to call any
time they wished. Later that same day, Crosby met alone with
Hassaneih in Respondent’s conference room, and Hassaneih
asked for more examples of Van Hoppler’s behavior. Crosby’s
responses were essentially the same as previously related. Ac-
cording to Hassaneih, Crosby wanted to know what was going
to be done with Hoppler, arguing that he shouldn’t be working
for the Company, but Hassaneih declined to discuss that.
Later that day, Crosby, being dissatisfied with the outcome
of the meetings, asked for another meeting with Hassaneih. On
the following day, May 19, Crosby, along with his wife, Julie
(J. Crosby), and Carter, met with Hassaneih at a local fast food
restaurant. Crosby told Hassaneih that he was concerned about
retaliation from Hoppler for his part in the complaint letter.
Hassaneih assured him that no one would be terminated be-
cause of it.
Hassaneih testified that during his discussions with employ-
ees, he mentioned management concerns about the lack of
business and why most of them were not working full time. He
did not tell the employees that he had recommended a layoff as
he did not think that would be the right thing to do.
Following the meetings, Hassaneih met several times with
Hoppler. He told him the complaint letter accused him of hav-
ing an intimidating style; without divulging names, he told him
what had been said in meetings with employees, and he di-
rected Respondent’s human resources department to arrange for
Hoppler’s attendance at management classes. Hassaneih dis-
cussed again with Hoppler the need to lay off technicians,
warning him he could not lay off or fire anyone because of the
complaint letter and instructing Hoppler to let him know once
he had decided on a technician for layoff.
Thereafter, as instructed by his superiors, beginning shortly
after May 18, Hoppler held meetings with each technician (Van
Hoppler meeting) to discuss the complaints.
Crosby testified that sometime between May 18 and 24 he
was called into Hoppler’s office. Hoppler had the complaint
letter before him, and he read it to Crosby, adding, “I’m just
letting you know that everybody’s going to have to go by the
contract now.”7
Madden also testified about the Van Hoppler meeting with
Crosby.8 According to Madden, Hoppler explained the purpose
of the meeting, referred to the complaint letter, and asked
Crosby what working conditions were intolerable. Hoppler
said he felt like he was stabbed in the back by the complaint
letter being sent to his superiors over his head, that it was a
sneaky way of going about it. He said he wished Crosby could
have brought it up with him person-to-person and tried to work
out problems. Crosby said that he had tried to discuss situa-
tions with Hoppler but had never been able satisfactorily to
resolve issues with him. Crosby also said that he wished Hop-
pler were nicer to him, that he could get more production out of
employees if he were more friendly and more personal with
employees. He mentioned, as an example, one morning when
Hoppler refused to shake his hand. He said that if Hoppler
were nicer to the workers they would be more inclined to per-
form better for him. Hoppler said:

I don’t have to be your friend. I’m your boss. This is
[personnel] relations here. Basically I’m here to run the
work force, and you’re to do what you’re asked to do in
the work performed. So what you’re telling me is if I’m
not going to be your friend and shake your hand and say hi
to you every time you come in the door, then you’re not
going to perform the work that Carrier’s paying you to do?

Crosby answered, “That’s exactly what I’m saying.”9
Madden also recounted a Van Hoppler meeting he attended
with Winchester. Winchester told Hoppler that he was a hard
person to get along with but did not cite specifics. Winchester
recalled that he told Hoppler that the intolerable conditions
were the way he treated employees, making disparaging jokes,
saying demoralizing things, and threatening to fire people on a
whim. According to Winchester, Hoppler accused him of just
being disgruntled because Hoppler reprimanded him.
Although Madden did not attend any other Van Hoppler
meetings, Hoppler informed him, as the union steward, that he
had met with Webb, Haigwood, and Carter in a group as re-
quested by the three employees who had said they did not need
the union steward to be present. Hoppler told Madden that the
three employees said they did not have any specific problems,

7 Crosby did not mention this meeting on direct examination. On
cross-examination, he testified as set forth but was not asked for further
explication.
8 Madden placed the meeting on July 5, after Crosby returned from
medical leave. However, Madden also testified that he did not remem-
ber dates, but he recalled it was a meeting with Hoppler, Crosby, Der-
foldi, Sorenson, and himself. Because the subject matter, as recalled by
Madden, related solely to the complaint letter, and because Derfoldi
credibly testified that he did not attend the July 5 meeting between
Hoppler and Crosby, I conclude that Madden has confused the date,
and that Crosby’s Van Hoppler meeting occurred in May as Crosby
testified. As to whether or what parts of the conversation related by
Madden occurred at the July 5 meeting is unclear.
9 Notwithstanding the confusion over its date, Madden’s recall of the
conversation was clear and detailed. He appeared forthright and sin-
cere. I accept his testimony without finding it necessary to determine
which part of it may have occurred in May and which on July 5.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1144
that they had felt coerced to sign the letter, feeling they would
be singled out if they didn’t. As for Madden, Hoppler called
him on his cell phone at work to discuss the complaint letter.
Hoppler asked Madden if he had any intolerable conditions he
wanted to bring out. Madden told him he hadn’t ever really had
a problem with Hoppler that he couldn’t discuss, and he did not
feel it necessary to have a meeting.
Sometime the first part of June, while Crosby was on medi-
cal leave, Respondent changed its service scheduling and work-
load and responsibility assignment system so that service tech-
nicians were designated as the primary technician for specific
customers or work sites. The object of the change was to en-
hance productivity by assigning technicians to service equip-
ment they were familiar with.
On June 21 or 26, Crosby telephoned Derfoldi and informed
him that his doctor had released him to return to work. Der-
foldi said he didn’t have the work at that time as it was slow
and asked Crosby to extend his recovery time. Crosby did so
until July 5. On his return from medical leave on July 5,
Crosby saw Hoppler in the breakroom. Crosby offered to shake
hands, and Hoppler said, “I don’t shake hands with people like
you.”
Crosby asked, “Can—are you man enough to put these—the
problems behind us and try to get along?”
Hoppler said, “Not with someone who stabs me in the back.”
On that same day, July 5, Crosby met with Derfoldi. There
are significant differences among the accounts of Crosby, Hop-
pler, and Madden regarding the meeting. Inasmuch as state-
ments made in the meeting are germane to the issue of whether
Derfoldi bore animus toward Crosby because of his protected
activities or threatened him with discharge because he failed to
participate in union activities, I have set out the various ac-
counts in detail.
Crosby’s account: when he returned from medical leave he
went into Derfoldi’s office. Derfoldi called in Madden and
Sorenson, and then informed Crosby that he would have to go
by the [Union] contract with regard to his working hours.
Crosby said he did not have a problem with the working hours,
that he was not one who had received preferential treatment,
and he had no problem with the contract. Derfoldi told him that
if he had a problem with the contract, he would have to speak
to the shop steward about it. Crosby said he did not recognize
Madden as shop steward because he received preferential
treatment and did not look out “for the guys at that job site.”
Crosby also said he did not recognize Sorenson as lead techni-
cian because the classification was not in the union contract and
because he too got preferential treatment. Madden and
Sorenson left the room, and Derfoldi told Crosby that the com-
ments he had made would get him terminated.
Derfoldi’s account: Crosby met with him on July 5, and
complained to him about the work dispatches he had received
on returning from medical leave. Derfoldi called Sorenson and
Madden into the meeting, the latter so that Crosby could pursue
union contract issues if desired. Crosby said that he did not
recognize the lead mechanic’s authority to make work assign-
ment decisions and challenged Derfoldi’s right to decide what
jobs he worked on. Derfoldi told Crosby that he should raise
those concerns with his union steward. Crosby said he did not
recognize Madden’s authority as a union steward. Derfoldi
testified that he ended the conversation by saying “that [he]
considered it insubordination when [Crosby] refused to recog-
nize everybody’s authority in the room and that in itself I
thought—I believed were grounds for termination—refusing to
do work or take specific jobs, and if he had a place—if he had a
complaint, unless he didn’t want to go to the job [he] assigned
him, that he needed to file a complaint with the Union.”
Crosby responded that he wanted to talk to Hoppler.
Madden’s account: Derfoldi asked him to be present as un-
ion steward since Crosby had requested a meeting. At the
meeting, Derfoldi told Crosby he had asked Madden to be pre-
sent as union steward and Sorenson as lead mechanic.
Crosby said that he did not recognize Sorenson as a lead me-
chanic as there was no provision for such in the union contract,
and he did not recognize Madden as union steward as the Union
had never appointed him. Derfoldi said he had the right to
assign one technician to a lead position and that Respondent
had been notified in writing of Madden’s union stewardship
appointment.10 Crosby complained about his new job assign-
ments, saying that he felt he was being excluded from job sites
he wanted. Derfoldi explained that each technician was as-
signed to even groupings of job sites due to business reasons,
including a computer system conversion. Derfoldi said he had
the right through the union contract to assign the workforce as
he thought necessary. Crosby said he considered it a violation
of the contract, that Derfoldi was not even a technician or me-
chanic and didn’t know what kind of work Crosby was capable
of doing. He asked, “What gives you the right to tell me what
jobs I can go to and what I’m qualified to work on?” Derfoldi
told Crosby that if he felt there was any violation of the con-
tract, he could address that through a union grievance.
Sorenson’s account: he believed the purpose of the July 5
meeting was to discuss chain of command and delegation of
authority. He testified that in the course of the meeting, Crosby
said he did not acknowledge Sorenson as lead technician, Mad-
den as union steward, or Derfoldi as his supervisor because
Derfoldi did not know how to work on chillers.
I credit Derfoldi, Madden, and Sorenson’s accounts of this
conversation. Neither Sorenson nor Madden has any demon-
strated bias or basis for slanting their testimonies. They are
neutral witnesses. Madden’s testimony was particularly de-
tailed, cogent, and logical. I give his testimony significant
weight and note that in essentials, Derfoldi and Sorenson cor-
roborated it. Although each account varied, the consensus of
their testimonies was that Crosby complained of his job as-
signments and rejected the authority of Derfoldi and Sorenson
and the standing of Madden. Where his testimony conflicts
with that portrayal of the meeting, I do not credit Crosby.
At the conclusion of the discussion between Crosby and Der-
foldi, Crosby said that he wanted to have a meeting with Hop-
pler to find out if he was or wasn’t going to be terminated.
Derfoldi left and when he returned told Crosby that Hoppler
had agreed to have a meeting.

10 A letter dated March 10, from the Union to Respondent appointing
Madden as shop steward was received into evidence.
CARRIER CORP. 1145
Crosby testified that he and Derfoldi went to the conference
room where Hoppler, Madden, and Sorenson were present.
Hoppler did not testify regarding this meeting, and Derfoldi
denied that he was present.
According to Crosby, at this meeting, although Hoppler did
not have a copy of the complaint letter before him, he asked
Crosby his definition of the words used in the complaint letter,
i.e., extremely abusive and aggressive behavior. Crosby said
his definition was the way Hoppler treats employees and gave
as examples Hoppler’s calling him at a jobsite and asking if he
needed to send someone out who knew what he was doing, or if
he liked his job. Hoppler said he behaved that way to every-
body. Crosby said, “Well, you don’t do it to Rick [Sorenson].”
Sorenson said, “Yes, he does. He does it to me all the time.”
Crosby said he would not accept it. Hoppler asked if Crosby
meant that he would not work for him if was not nice to all the
employees. Crosby denied that and said he meant that when
employees are upset, their performance is diminished. When
the meeting concluded, Crosby offered to shake hands, but
Hoppler refused, saying, “That’s all we got.” Crosby asked for
and was given a copy of notes Hoppler had taken in the meet-
ing.11 Crosby’s account of this meeting is not contradicted by
any witness, but I cannot give it full weight as an account of
Crosby’s July 5 meeting with Hoppler because it lacks internal
congruity. Crosby’s stated reason for demanding a meeting
with Hoppler on July 5, was because Derfoldi had said his con-
duct was grounds for termination. Yet Crosby did not testify to
having raised that subject with Hoppler at all, and the asserted
meeting content does not rationally follow the preceding
events. As the complaint letter was covered in Crosby’s May
meeting with Hoppler, it makes no sense that it should be fully
discussed again. Considering all testimony regarding his July 5
meeting with Hoppler, I can only conclude that Crosby—like
Madden—at least in part, confused what occurred in his May
Van Hoppler meeting with what took place on July 5. How-
ever, the evidence suggests, and it is reasonable to infer, that
Hoppler expressed animosity toward Crosby’s participation in
the complaint letter in both meetings. The evidence also shows
that Hoppler focused on Crosby as the complaint letter’s main
proponent.
At about this time, Respondent began preparations for a lay-
off. According to Hoppler, when it “got to summer,” he told
Derfoldi, Sorensen, and Madden to start thinking about a lay-
off. It was not unexpected news for Derfoldi who testified that
he had overheard conversations between Hassaneih and Hop-
pler regarding Hassaneih’s decision that a layoff was necessary.
Hoppler had also told him that he was being pressured to lay
someone off. In late June, Derfoldi requested Crosby to extend
his medical leave beyond June because of lack of work. There-
after, Hoppler directed Derfoldi to lay someone off in order to
get Respondent’s labor costs in line. Derfoldi denied that Hop-
pler had ever indicated that he wanted Crosby selected for lay-
off.

11 Crosby testified that he had misplaced the copy in his relocation to
Florida.
Prior to selecting an employee for layoff, Derfoldi consulted
Sorenson and Madden.12 Though not specifically testifying
about participation in the selection process, Sorenson testified
that while Crosby was on medical leave, Sorenson serviced a
number of Crosby’s work sites and discovered numerous prob-
lems with the equipment Crosby had worked on. He reported
the problems to Hoppler and Derfoldi. He also testified that in
his opinion, Crosby was guilty of “milking” (taking excess
repair time on) some jobs. He said he had accused Crosby of
milking jobs and reported it to Hoppler and Derfoldi on more
than one occasion.13 Sorenson also testified that he had re-
ceived complaints from Sam’s Town, the Review Journal,
Jerry’s Nugget, and Caesar’s Palace regarding Crosby’s work,
which he reported to Hoppler and Derfoldi. Thereafter, Crosby
was sent to those businesses for emergency work but not on a
regular basis. Hoppler also testified of complaints about
Crosby’s work from Caesar’s, the Review Journal, and Jerry’s
Nugget. He neither investigated the complaints nor spoke di-
rectly to Crosby concerning them. It was his practice, he said,
to tell the complaining customer that Respondent would send
another person out and do better for them and to caution em-
ployees as a group to be careful of their work quality and be-
havior.
Derfoldi testified that he selected Crosby for layoff because
of customer complaints, and because he believed him to have
excessive repair time and excessive repair return calls. Specifi-
cally, Derfoldi recalled that Ron Vandeist, assistant chief of
Sam’s Town (a Boyd Gaming property), Ron Ranulf, facilities
director of the Review Journal, and Pete Kurner of Stardust
Hotel complained about Crosby’s work.14 Derfoldi testified
that although he discussed the complaints with Crosby, he did
not document either the discussions or the complaints. He also
did not document excessive repair time or return repair calls
because he did not consider Crosby’s range of excessive time
or repair callbacks to be so significant as to justify termination.
According to Derfoldi, it was not Respondent’s practice to
document complaints. He said, hypothetically, that if an em-
ployee appeared to have such excessive complaints or problems
that discharge would be warranted, Respondent would then
document that employee’s work problems. While admitting he
had no objective verification of his opinion, he said that he
believed Crosby to be the worst offender in terms of excessive
repair time and callbacks. Derfoldi also considered that Crosby
12 Derfoldi testified that Hoppler was among those he consulted, but
both he and Hoppler are adamant that Hoppler did not participate in the
selection.
13 Crosby denied that Sorenson had ever complained to him about
his job performance. I credit Sorenson’s testimony. I found him to be
direct and sincere.
14 Ray Murphy (Murphy), chief engineer of the Stardust Hotel and
supervised by Pete Kurner during 2000, testified that he had no prob-
lems with Crosby’s work and knew of no dissatisfaction by anyone
else. He did recall complaining sometime in 2000 that filters had not
been changed for several years and requesting all the invoices and work
orders although he did not, apparently, hold Crosby responsible. In
these circumstances, I cannot find that Murphy’s testimony effectively
rebuts Derfoldi’s assertion that Kurner asked for Crosby’s replacement
as Stardust service technician.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1146
was the least senior of the journeyman applied mechanics.
Derfoldi further testified that Crosby’s conduct during the July
5 meeting and his opposition to Respondent’s work assignment
changes significantly influenced his decision to lay off Crosby.
Although Crosby’s conduct in the July 5 meeting fell last in the
list of reasons given by Derfoldi for selecting him for layoff,
Derfoldi testified that it was Crosby’s conduct in denying Der-
foldi’s authority that most influenced the layoff decision. He
said he found objectionable Crosby’s refusal to “recognize the
authority that I had to assign job assignments. He didn’t recog-
nize the authority of the union steward if he had a complaint to
deal with any issues as far as represented labor or my lead me-
chanic at the time . . . to assess abilities of other mechanics and
to determine what levels and what places they should work at,
and blanket statements that he had made that . . . he does not
work for us, he works for the union.” When asked by counsel
for the General Counsel if he had based his selection, at least in
part, on Crosby’s refusal to pursue his complaints with the un-
ion steward, Derfoldi answered, “No, not at all.”
According to Hoppler, in early July, Derfoldi, Sorensen, and
Madden came to him and recommended that Crosby be laid off.
Derfoldi and Sorensen expressed their reasons for selecting
Crosby, and Madden, as union steward, merely agreed. Der-
foldi and Sorensen pointed out that the applied work, which
Crosby performed, was less busy than the unitary work and a
journeyman mechanic qualified to do applied work was costly.
Both had concerns about Crosby’s customer calls and perform-
ance.15 Hoppler agreed with their choice. He denied that he
ever suggested to Derfoldi or Sorensen that they should select
Crosby or that his ratification of the selection had anything to
do with the complaint letter. Derfoldi and Hoppler credibly
testified as to the layoff selection process, and I find that al-
though he approved the choice of Crosby for layoff, Hoppler
had no part in his selection.
Emails dated July 5 from Hoppler to Derfoldi and July 6
from Derfoldi to Hoppler were identified and received into
evidence without explanation or testimony. The July 5 email
from Hoppler reads:

On Friday, July 7th Carrier Law Vegas will lay off Ken
Crosby . . . . This is a reduction in work force due to lack of
work. We have lost 2 large service agreements in the past
month and feel these actions must be taken immediately.

Linda, Ken has $100.00 of Carrier imprest money. Please
have this deducted from his final pay check.

The July 6 email from Derfoldi reads:

Van,

15 In his posthearing brief, counsel for the General Counsel argues
that testimony regarding recommendations by Sorensen and Madden is
inadmissible hearsay and should not be credited. Counsel did not raise
this object at the hearing, and it is untimely to raise it now. Fed.R.Evid.
103(a)(1). Moreover, both Madden and Sorensen testified at the hear-
ing, and counsel was free to question them about their recommenda-
tions or lack thereof. While Sorenson did not specifically testify that he
recommended Crosby for layoff, he was critical of Crosby’s work and
his testimony is neither inconsistent with Derfoldi’s nor indicative of
unreliability.
Due to the loss of 2 large service agreements and a
lack of scheduled work, we need to reduce our work force.
This action must be taken immediately.
I am recommending that Ken Crosby . . . be the first
lay off beginning July 7th.

The General Counsel argues that the emails show Hoppler
directed the layoff of Crosby. It is unfortunate that neither the
General Counsel nor Respondent inquired into the circum-
stances of the emails for they are confusing as dated. The con-
tents of the emails only make sense if Derfoldi’s preceded
Hoppler’s. Because of this confusion, and because a rational
reading suggests that Hoppler’s email was misdated, I do not
find this evidence to be probative of whether Hoppler made the
decision to lay off Crosby.
Hoppler notified Hassaneih that he was going to lay off
Crosby. Hassaneih questioned him closely as to why he had
chosen that particular technician. Hoppler said that Crosby was
a highly paid technician and the other technician who was also
highly paid had been with the company for over 20 years.
Hoppler said Derfoldi and the shop steward suggested the
choice, and he thought it was the right thing to do financially.
Hassaneih then approved the layoff of Crosby.
Although Respondent admits there was no explicit advance
warning of layoffs, Hoppler testified that in his morning work
meetings with employees, he had discussed the business slow-
down. Hassaneih also testified he discussed the company’s
economic problems in his meetings with employees in May.
Prior to the historically slow summer months, technician labor
hours had already been reduced to 32 hours a week, and Crosby
was asked to extend his medical leave because of lack of work.
On July 10, when Crosby reported to work, he noticed that
his name was not on the dispatch board. After the morning
technician meeting, Crosby joined Derfoldi in his office. Mad-
den was present. Derfoldi informed Crosby he was laid off.
According to Derfoldi, the discussion lasted at least an hour,
and he told Crosby of his responsibility for productivity, profit-
ability, time on the jobs, and other issues, including Crosby’s
being least senior journeyman technician. Crosby was given an
Employee Status form noting his layoff for “labor reduction.”
Derfoldi drove Crosby home, stopping to eat on the way. Ac-
cording to Crosby, Derfoldi told him that he had laid him off so
that he could get unemployment even though Hoppler had di-
rected that he be fired. Derfoldi asked him not to pursue the
issue because he would get in trouble with Hoppler for not
doing as he had been ordered. Derfoldi denied telling Crosby
that Hoppler had wanted to or instructed him to discharge
Crosby.16
Crosby telephoned Hassaneih that same day as did J. Crosby.
Crosby testified that Hassaneih assured him he had not been
laid off because of the complaint letter, that part of the reason
was because he needed more time to heal from his work injury,
and that as soon as the workload picked up he would be
16 I accept Derfoldi’s testimony over that of Crosby. Crosby’s testi-
mony lacks logical consistency. It makes no sense for Derfoldi to have
said Hoppler wanted him to terminate Crosby and to request that
Crosby not pursue the layoff issue since Hoppler could scarcely fail to
learn that Crosby had been laid off rather than terminated.
CARRIER CORP. 1147
brought back. J. Crosby testified that Hassaneih told her that he
and Hoppler decided to lay off Crosby as there was not enough
work, and it was in the best interests of the company. Accord-
ing to Hassaneih he explained to Crosby the company’s eco-
nomic situation. He did not say Respondent would recall
Crosby shortly. I accept Hassaneih’s testimony over Crosby’s.
He appeared candid and clear about conversations and events,
and his testimony is consistent with J. Crosby’s.
Crosby grieved his layoff. On October 26, a meeting was
held concerning the grievance at the union hall. Present were
Milt Menchey (Menchey), business agent, Crosby, J. Crosby,
Madden, and Hoppler. Crosby testified that Hoppler said he
had made the decision to lay off Crosby, that seniority was not
a consideration, and that he used no criteria in making the lay-
off selection. According to Madden, J. Crosby did most of the
talking and said she felt Crosby’s seniority rights had been
violated. Menchey said there were no seniority clauses in any
of the union contracts. J. Crosby testified that Hoppler said he
made the layoff decision along with Derfoldi, and the lead
technician and that seniority had nothing to do with the deci-
sion. She also testified that Hoppler said there was no criteria
to go by. Hoppler testified that he explained the selection of
Crosby essentially as he explained it to Hassaneih, that he said
his subordinates had collectively made the decision, and that
there was no specific criteria set by the Union for layoffs. In
saying he made the decision to lay off Crosby, he meant that, as
the manager, he had ultimate responsibility for the decision.
Under cross-examination, Crosby varied his testimony
somewhat and said that Hoppler said he talked to Derfoldi and
Sorenson before making the layoff decision and that he stated,
“I can do whatever I want.” Crosby did not show a good recall
of the meeting, stating that although there were other things
said, he could not pull them out. There are normal variances in
the testimony as to what was said, but it appears clear that
Hoppler said he had made the layoff decision after input from
Derfoldi and Sorenson and that seniority was not a factor. I do
not credit Crosby’s testimony that Hoppler said he used no
criteria in making his selection. Hoppler testified he said the
Union had no specific criteria, and J. Crosby and Madden’s
testimonies also suggest that the discussion focused on whether
any contractual criteria had to be followed. I accept Hoppler’s
testimony about what he said and find he merely made an accu-
rate observation that the union contract establishes no criteria
for layoff selection and that Respondent has the contractual
right to make an arbitrary decision.
Following the meeting, Menchey said he would present the
facts to the union attorney, and a decision would be made
whether to pursue the grievance further. Sometime later, the
Union decided to drop the grievance.
Regarding Respondent’s complaints about his work, Crosby
denied that any supervisor had ever notified him of customer
complaints or, since his first year of employment, driving com-
plaints. He said that Hoppler regularly told him he did a good
job, and in October or November 1999, while at a restau-
rant/bar, had told him he loved him as a technician and that he
should never leave the company. According to Crosby, Hop-
pler also asked him to work for the company he intended to
establish. Crosby told Hoppler to tell him that the next day.17
Crosby also testified that he was given extra vacation a year
earlier than other employees as a mark of Hoppler’s respect for
his work. On May 15, Hoppler notified Crosby that he was
awarding him an additional week of vacation. The additional
week of vacation was normally awarded to employees after 5
years’ service. Hoppler told Crosby he was shortening the time
to 4 years in his case. Later that day, Crosby received a letter
confirming that an additional week of paid time off per year
was awarded him “[I]n recognition for your continued good
service and dedication to your profession.” According to Hop-
pler, Respondent has no paid vacation policy. He developed a
program of granting 1 week paid vacation after 5 years of em-
ployment as an award for longevity and dedication and addi-
tional paid vacation time after 8 years. The communication to
Crosby was a form letter, a facsimile of which was given to
each employee upon attainment of his 5th and 8th year of em-
ployment. Hoppler testified that Crosby was planning surgery
at the time and asked for some financial assistance. Respon-
dent, therefore, granted the additional vacation week a year
early in response to Crosby’s request and shortly before he left
on medical leave.18
Following Crosby’s layoff, Roger Derrick (Derrick) was hired
as a unitary technician and thereafter laid off.19 Doug Fenton
(Fenton) transferred from Respondent’s Miami office and
worked for just a few months. He was transferred to the Las
Vegas branch to work on a special project involving large instal-
lations on September and returned to Miami in December when
the project did not work out. Winchester testified that of the
employees who signed the complaint letter, Carter, Webb, Haig-
wood, and he were still working for Respondent. Williams took
a voluntary layoff to work for Hoppler’s newly formed company
but was never replaced, and no one replaced Crosby. Project
Manager Dan McGinty, was laid off on September 1.
Derfoldi testified that after Hoppler left the company, Respon-
dent, in conformity with its usual practice, conducted an audit of
company records. The auditor notified Derfoldi that former em-
ployees still had access to Respondent’s private telephone net-
work. Derfoldi’s consequent review of telephone billing records
led him to conclude that following his layoff, Crosby had opened
an account on Respondent’s private network and made phone
calls on it to Winchester during work hours. Following his in-
vestigation, Derfoldi met with Winchester. He told him the

17 Both the setting and Crosby’s response suggest Crosby considered
the statements to be in vino but without veritas. There is no evidence
the effusive praise was repeated; therefore, I cannot find it provides
evidence that Crosby was a stellar employee.
18 I credit Hoppler’s testimony. I found him to be direct and forth-
right. Respondent no longer employs him. Indeed, he is a competitor
and, as such, has no reason to distort the facts. I conclude, therefore,
that Crosby’s being granted a week of vacation after 4 rather than 5
years does not signify that Respondent considered him to be an out-
standing employee. However, Hoppler testified that he had told Crosby
he was a good technician, and there is no evidence that Hoppler consid-
ered his work to be unsatisfactory in any way.
19 As noted above, the position of unitary technician was paid at a
significantly lower rate than the applied technician position held by
Crosby.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1148
number of hours he was spending on the phone during com-
pany time on a company cell phone that Respondent paid for
was a conflict of interest both to productivity and “a conflict of
Crosby with his issues with the company on company time.”
He told Winchester that he could talk to Crosby anytime he
liked on his own time, but that it was a company time issue and
that he would terminate him if it continued. Derfoldi admitted
that employees are generally allowed to make personal calls on
the company system.
According to Winchester, Derfoldi told him that a corporate
investigator looking through telephone records had found evi-
dence that Crosby had illegally gained access to the telephone
radio and telephone network, and that Winchester had been
talking to Crosby using the equipment. Derfoldi said he was
upset that Crosby had been talking to Winchester using a two-
way radio system designed for Respondent’s employees. Win-
chester told Derfoldi that the calls were not just social, that he
was getting technical support information from Crosby. Der-
foldi told Winchester that Crosby’s connection on the tele-
phone/radio would be shut off. Winchester received no disci-
pline beyond an oral warning.
B. Discussion
1. Alleged 8(a)(1) violations
a. Alleged threats by Hoppler
The General Counsel alleges that Respondent violated Sec-
tion 8(a)(1) of the Act when Hoppler threatened Crosby with
unspecified reprisals for engaging in protected activities. The
General Counsel points to unrefuted testimony that when
Crosby returned to work on July 5, Hoppler declined to shake
hands with him and said he was unwilling to try to get along
with “someone who stabs me in the back.” The General Coun-
sel also points to a meeting later that day, where Hoppler ac-
cused Crosby of stabbing him in the back and being sneaky and
unmanly.20 The General Counsel argues that Hoppler thereby
communicated an implied threat of unspecified reprisal against
Crosby.
While employers are free under Section 8(c) of the Act to
express their views, arguments, or opinions about and regarding
protected activity as long as such expressions are unaccompa-
nied by threats of reprisals, force, or promise of benefit, Section
8(a)(1) prohibits certain speech and conduct deemed coercive.
A review of Board case law suggests that derogatory statements
are not per se violative of Section 8(a)(1). In Baptist Hospital,
Orange, 328 NLRB 628, 635 (1999), the employer’s supervisor
accused an employee of being a “back-stabber” because she did
not follow the chain of command in complaining to upper man-
agement. However, no independent 8(a)(1) violation was iden-
tified based on the statement,21 and the Board declined to find
that referring to union supporters as “clowns” in a letter to em-
ployees violated Section 8(a)(1). Carrom Division, 245 NLRB
703 fn. 1 (1979). Statements equating protected activity with
disloyalty are generally evaluated in the context of an em-

20 As set forth above, there is doubt as to whether those statements
were made at the meeting on July 5, or an earlier meeting in May.
However, for purposes of determining whether the statements violated
Sec. 8(a)(1), the timing is not important.
21 See also Ekstrom Electric, 327 NLRB 339 (1998).
ployer’s unlawful interference and coercion related to protected
rights. See Fieldcrest Cannon, Inc., 318 NLRB 470 (1995);
Wilker Bros. Co., 236 NLRB 1371 (1978), and cases cited by
the General Counsel, which involve specific threats as well as
denigration of an employee.22
In Sea Breeze Health Care Center, 331 NLRB 1131 (2000),
and cases cited therein, however, the Board stated that an em-
ployer’s expression of extreme disappointment with union ac-
tivity equated protected activity with disloyalty, was coercive,
and contained a veiled threat of reprisal in retaliation for pro-
tected activity. Guided by the Board in Sea Breeze, I conclude
that Hoppler’s remarks, although made in a context free from
any other unlawful statements, equate Crosby’s protected activ-
ity with disloyalty and constitute a withdrawal of supervisory
friendship and approval, which is tantamount to a veiled threat
of reprisal. As such, Hoppler’s statements violate Section
8(a)(1) of the Act.
b. Alleged threats by Derfoldi
The General Counsel alleges that on or about July 6, Der-
foldi threatened employees with discharge for failing to partici-
pate in union activities.
This allegation rests on a statement made by Derfoldi to
Crosby during their meeting of July 5, that Derfoldi considered
it insubordination when Crosby refused to recognize every-
body’s authority in the room. That in itself, Derfoldi said, was
grounds for termination—refusing to do work or take specific
jobs—if [Crosby] had a complaint, unless he didn’t want to go
to the job [Derfoldi] assigned him . . . he needed to file a com-
plaint with the Union.” The General Counsel argues that by
this statement, Derfoldi unlawfully threatened Crosby that his
refusal to recognize the union steward and, presumably, follow
union grievance procedures was grounds for termination.
Counsel for the General Counsel correctly summarizes the
law as holding that an employer violates the act by adverse
action toward an employee because of his opposition to a union
official or a refusal to engage in union activities. If Derfoldi’s
statement could be reasonably and objectively comprehended
as a threat that Crosby might be terminated because he declined
to recognize Madden as his union representative, then the
statement is, as Counsel for the General Counsel argues, a
threat in violation of the Act. Derfoldi’s subjective intent in
making the statement or Crosby’s reaction to it is not a deter-
minative consideration, e.g., Swift Textiles, 242 NLRB 691 fn.
2 (1979). “The issue is whether objectively . . . remarks rea-
sonably tended to interfere with the employee’s right to engage
in [a] protected act.” Southdown Care Center, 308 NLRB 225,
227 (1992).
I cannot find that a reasonable person would regard Der-
foldi’s statement as an unlawful threat. Although he said he
considered Crosby’s refusal to recognize “everybody’s author-
ity in the room” to be insubordination, Derfoldi further expli-
cated what he thought constituted grounds for termination:
refusing to do work or to take specific jobs. His further refer-
ence to the Union was merely that if Crosby had a complaint
22 Golden Eagle Spotting Co., 319 NLRB 64 (1995); Belding Haus-
man Fabrics, 299 NLRB 239 (1990); and Southern Illinois Petrol, Inc.,
277 NLRB 160 (1985).
CARRIER CORP. 1149
and did not want to go to the assigned job, he needed to file a
complaint with the Union. Thus, in spite of his initial broad
charge that Crosby’s rejection of “everybody’s authority” was
insubordinate, Derfoldi immediately narrowed the grounds for
termination to encompass only Crosby’s refusal to do work or
take specific jobs. I conclude that Derfoldi’s caution to Crosby
that his words were grounds for termination are reasonably
susceptible of a lawful interpretation, i.e., that refusing to ac-
cept job assignments could result in termination. In reaching
this conclusion, I note that none of the other participants related
any statement that could be construed as a threat to Crosby for
refusing to accept Madden’s authority. Crosby testified that
Derfoldi’s warning was made after Sorenson and Madden left
the meeting, which would explain their silence on the subject,
but even his version of what was said does not link any threat to
his rejection of Madden. Crosby testified only that Derfoldi
told him that his comments would get him terminated. As there
is insufficient basis to ascribe an unlawful rather than a lawful
meaning to Derfoldi’s words, I cannot find that he threatened
Crosby with discharge because he refused to recognize the
authority of the union steward or to pursue his concerns
through the Union. See Pullman Power Products Corp., 275
NLRB 765 (1985). Accordingly, I shall dismiss this allegation
of the complaint.
The General Counsel, in his amendment to the complaint,
further alleges that Derfoldi, in January 2001, threatened em-
ployees with layoff for their protected concerted activities and
their participation in Board proceedings. This allegation rests
on Derfoldi’s statements to Winchester in January 2001. Der-
foldi’s prohibition of Winchester’s use of the company tele-
phone system to talk to Crosby was based on no established
company rule but rather on Crosby’s “issues” with the com-
pany.” The issues referred to must have comprehended
Crosby’s having filed a grievance concerning his discharge
and/or a charge with the Board. It is irrelevant that Crosby may
unlawfully have obtained access to the company telephone
system. Winchester was not charged with any wrongdoing, and
the thrust of the prohibition was to single Winchester out for
restriction on telephone use and thereby interfered with his
right to discuss protected matters with others.
The restriction and the accompanying oral warning were,
therefore, violative of Section 8(a)(1).
c. July 10 layoff of Crosby
Employees acting together to report or complain of supervi-
sor misconduct falls clearly under the umbrella of employee
rights that are protected by Section 7 of the Act.23 There is no
dispute that the complaint letter circulated and presented to
Respondent in May constituted concerted protected activity.
The evidence is also clear that Crosby was its chief proponent
and that Respondent was aware of the scope of his involve-
ment.24 The question is whether Respondent bore animus to-

23 See Georgia Farm Bureau Mutual Insurance Co., 333 NLRB 850
(2001), and Baptist Hospital, Orange, above.
24 Respondent argues that Hoppler and Derfoldi did not know the ex-
tent of Crosby’s activity, and that Winchester as the circulator of the
letter was more actively involved than Crosby. Although there is no
direct evidence that Hoppler or Derfoldi knew of Crosby’s catalytic
ward Crosby because of his protected activities and retaliated
by laying him off in July.
There is no evidence Hassaneih or Burton had animus to-
ward Crosby or any employee because of the complaint letter.
Indeed, the two company officials were, by all accounts, very
concerned about employee complaints and took immediate and
extensive steps to resolve them. Hassaneih also committed
himself to scrutinizing any unit personnel action taken in the
Las Vegas branch, and his overall conduct in dealing with the
complaint letter militates against any finding that he or any
corporate officer resented employees’ exercise of protected
rights. Hassaneih’s lack of animus is significant because it was
Hassaneih who determined and urged that Respondent lay off
unit employees at its Las Vegas branch.
The evidence shows that Respondent experienced a business
turndown in 2000. In response, Hassaneih determined that
economic expediency required a layoff of employees in the Las
Vegas office. The General Counsel contends that Respondent’s
economic defense is a sham, arguing that Respondent did not
document the asserted loss of two large service contracts. Re-
spondent did, however, document the slowdown in business.
While the General Counsel argues that the 2000 earnings were
not significantly off plan target, the Board has made it clear that
an employer’s “business conduct is not to be judged by any
standard other than that which it has set for itself.” FPC Adver-
tising, Inc., 231 NLRB 1135, 1136 (1977). Moreover,
“[w]hether procedures other than a layoff might have been
more or equally effective in remedying the Respondent’s eco-
nomic loss is not a matter the Board is empowered to decide.
The Board’s authority . . . extends only to the determination of
whether the conduct is discriminatorily motivated or otherwise
in violation of the Act.” Gem Urethane Corp., 284 NLRB
1349, 1350 (1987).25 In light of Respondent’s documented
economic situation, and in absence of any evidence of animus
on Hassaneih’s part, there is no evidence that Hassaneih’s insis-
tence on layoffs was other than a legitimate business response
to fiscal exigencies. Hassaneih’s credible testimony reveals
that he pressed for layoffs prior to the creation of the complaint
letter and did not deviate from or alter that approach as one
proposed solution to Respondent’s economic problems. More-
over, the evidence shows that no one was hired to replace
Crosby in the applied mechanic position. Although a unitary
mechanic was hired, as that classification is paid at a lower rate
than Crosby’s and as Respondent’s service focus was shifting
from applied work, the addition of a unitary mechanic does not
contradict Respondent’s assertion that it was attempting to
reduce labor costs. Moreover, the newly hired unitary me-
chanic was thereafter laid off, and additional workforce reduc-
tion through attrition occurred after Crosby was laid off.
While, as the General Counsel points out, Webb was apparently

role in the complaint letter, given the extensive discussion of the matter
between upper management and employees, Hoppler’s employee inter-
views, and Hoppler’s refusal to shake hands with Crosby and accusa-
tion of disloyalty, knowledge can reasonably be inferred.
25 In keeping with the Board’s position, I have not considered the
General Counsel’s assertion that an ineffective sales force was the
source of Respondent’s economic problems or that failure to focus on
the sales department was evidence of a pretextual economic defense.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1150
promoted to journeyman status effective April 3, 2001, I cannot
infer discriminatory motive from that fact or from Respon-
dent’s failure to call Crosby back to work. Crosby had, by that
time, relocated to Florida, and Respondent believed he had,
postlayoff, unlawfully signed himself on to the company tele-
phone system. Either was a nondiscriminatory reason for fail-
ing to recall Crosby. I conclude that in urging technician lay-
offs, Hassaneih was motivated by a valid desire to reduce Re-
spondent’s labor costs and stem its economic losses. Conse-
quently, I find that the General Counsel has not met his burden
of proving the layoff decision was based on any unlawful con-
sideration.
Concluding that the motivation for the layoff was nondis-
criminatory, however, answers only half the question. Remain-
ing is the issue of whether Crosby was discriminatorily selected
for layoff because of his prominent participation in the com-
plaint letter. If Respondent selected Crosby for layoff in re-
taliation for the complaint letter, such is violative of Section
8(a)(1) of the Act. Georgia Farm Bureau, above. I analyze the
lawfulness of Crosby’s selection by applying the Board’s ana-
lytical framework set out in Wright Line.26 Under this frame-
work, the General Counsel must make a prima facie showing
sufficient to support an inference that animosity toward
Crosby’s protected activity was a motivating factor in his selec-
tion for layoff. The prima facie case may be established by
proving the following four elements: (1) the alleged discrimina-
tee engaged in union or protected concerted activities; (2) Re-
spondent knew about such activity; (3) Respondent took ad-
verse employment action against the alleged discriminatee; and
(4) there is a link or nexus between the protected activity and
the adverse employment action. Signature Flight Support, 333
NLRB 1250 (2001). The first three elements are established
herein. Crosby clearly engaged in protected activity; Respon-
dent knew of Crosby’s protected activity, and Respondent laid
off Crosby—an adverse employment action.
The pivotal factual inquiry in determining whether the Gen-
eral Counsel has made a prima facie showing involves the
fourth element, i.e., whether there is a link or nexus between
Crosby’s involvement in the complaint letter and/or his pro-
tected rejection of Madden as union steward and his selection
for layoff. In resolving this issue, it is necessary to determine,
if possible, Respondent’s motive in selecting Crosby. If the
evidence shows that animosity toward Crosby’s involvement in
the complaint letter formed any part of the basis for his layoff
selection, then the General Counsel has made his prima facie
case.27
Motive is a question of fact, and the Board may infer dis-
criminatory motivation from either direct or circumstantial
evidence. Since direct evidence is rare, evidence of an em-
ployer’s motive in personnel actions must frequently be
gleaned from the circumstances surrounding the actions. Indi-

26 251 NLRB 1083 (1980), enfd. 662 F. 2d 899 (1st Cir. 1981), cert.
denied 455 U.S. 989 (1982).
27 Once the General Counsel has made its prima facie case, the bur-
den shifts to Respondent to show, in essence, that it would have taken
the same action, for nondiscriminatory reasons, even in the absence of
protected activity.
cations of discriminatory motive may include expressed hostil-
ity toward the protected activity,28 abruptness of the adverse
action,29 timing,30 failure to conduct a full and fair investiga-
tion,31 failure to disclose the reason for the action,32 false asser-
tion of lawful purpose,33 pretextual reason,34 disparate treat-
ment,35 departure from past practice,36 and/or the employer’s
inability to adhere to a consistent explanation for the action.37
Respondent argues that there is no evidence of “union” ani-
mus on its part, citing its apparently harmonious contractual
relationship with the Union. That does not preclude the possi-
bility of animus toward protected activities other than union
activity. See CWI of Maryland, Inc., 325 NLRB 791 (1998).
The General Counsel argues that Hoppel had knowledge of
Crosby’s involvement in the complaint letter and bore him
considerable animosity for it. I agree that Hoppel had both
knowledge and animosity. However, while Hoppel demon-
strated undeniable hostility toward Crosby, there is no credible
evidence that Hoppel selected Crosby for layoff or influenced
anyone else’s selection. All persuasive evidence supports the
conclusion that Derfoldi, in conjunction with Sorensen and
Madden, chose Crosby for layoff.38 That Hoppler approved the
selection and took responsibility for it at the union grievance
meeting reflects nothing more than an exercise and an affirma-
tion of his ultimate authority in layoffs. It does not, as the Gen-
eral Counsel asserts, show that Hoppler “actually made the
decision to select [Mr.] Crosby.” It may well be, as the General
Counsel argues, that Hoppler wished to retaliate against Crosby
for the complaint letter, and it may be that Hoppler was de-
lighted by his selection. However, the mere fact that an em-
ployer may desire to terminate an employee to curtail union
activities or, as here, to punish protected concerted activity,
does not, of itself, establish the illegality of the layoff. The fact
that Hoppler may have welcomed the selection of Crosby as
layoff candidate does not prove that Hoppler made the selection
or render the layoff unlawful. Klate Holt Co., 161 NLRB 1606,
1612 (1966); Avondale Industries, 329 NLRB 1064 (1999).
28 Mercedez Benz of Orland Park, 333 NLRB 1017 (2001).
29 Dynabil Industries, 330 NLRB 360 (1999).
30 Bethlehem Temple Learning Center, Inc., 330 NLRB 1177 (2000).
31 Bonanza Aluminum Corp., 300 NLRB 585 (1990).
32 Dynabil Industries, supra; NLRB v. Griggs Equipment, 307 F.2d
275 (5th Cir. 1962).
33 Sahara Las Vegas Corp., 284 NLRB 337 (1987).
34 Pacific FM, Inc., 332 NLRB 771 (2000); Fluor Daniel, 311
NLRB 498 (1993).
35 NACCO Materials Handling Group, Inc., 331 NLRB 728 (2000).
36 Sunbelt Enterprises, 285 NLRB 1153 (1987).
37 Atlantic Limousine, 316 NLRB 822 (1995).
38 The General Counsel strongly relies on the emails between Hop-
pler and Derfoldi as establishing Hoppler’s involvement in the selec-
tion. I agree that the emails are confusing—even suspicious—and have
not been explained. However, The Board has observed that even when
the record raises substantial suspicions regarding adverse action against
employees, the General Counsel is not relieved of his burden of proving
that Respondent was illegally motivated. Murphy Bros., 267 NLRB
718 (1983); Carrom Division, 245 NLRB 703 (1979). As set forth
above, I cannot find the emails to constitute persuasive evidence that
Hoppler selected Crosby for layoff.
CARRIER CORP. 1151
Counsel for the Charging Party argues that Derfoldi’s assum-
ing responsibility for the layoff was a contrived attempt at de-
flecting blame from Hoppler. I have considered that in select-
ing Crosby for layoff, Derfoldi was proxy for Hoppler. How-
ever, there is no direct evidence of this, and it cannot be in-
ferred from the circumstances. It cannot be assumed that Der-
foldi felt resentment at employees’ criticism of Hoppler; there-
fore, there must be some evidence that Derfoldi took offense at
the complaint letter. There is no such evidence.
Derfoldi is not accused of having expressed any animosity
toward Crosby for his part in the complaint letter; there is no
evidence that he felt any ill will toward any employee because
of the letter and no evidence he engaged in machinations with
Hoppler to terminate Crosby.
I have also considered whether Derfoldi’s selection of
Crosby for layoff was motivated, at least in part, by Crosby’s
rejection of Madden as his Union steward. Derfoldi testified
that his July 5 meeting with Crosby played a considerable part
in his decision to select him for layoff, and admittedly Crosby’s
conduct included a refusal to recognize Madden as union stew-
ard. For reasons set forth above, I conclude that the effect of
Crosby’s refutation of Madden was too minimal to play any
significant role in the layoff decision. It is clear that Derfoldi
focused on Crosby’s disavowal of his and Sorenson’s authority
when warning Crosby about his statements, and there is no
evidence that there was any other discussion or concern about
Crosby’s objection to Madden’s stewardship. Accordingly, I
find Crosby’s protected objection to Madden as union steward
was not an appreciable factor in Derfoldi’s layoff selection.
There is no evidence of any false or pretextual basis for the
layoff or the selection. Respondent has demonstrated its eco-
nomic need for a reduction in labor costs, and employees must
have known the business slowdown as their shifts had been
shortened. Certainly, Crosby was aware of the slowdown as he
had been asked to extend his medical leave because of lack of
work. Although Derfoldi had no documentation of poor work
by Crosby and had not disciplined him in any way because of
customer complaints, there is no evidence of pretext or pretense
in Derfoldi’s opinion that Crosby had more complaints than
other employees. Evidence that Crosby was a skilled and de-
pendable technician was presented, and evidence of complaints
about Crosby’s work was also presented. It is not necessary for
me to resolve those conflicting views of Crosby’s work. The
Board requires more than discredited reasons to establish moti-
vation. In Garrett Flexible Products, 270 NLRB 1147, 1148
(1984), the Board held, that “the question of motivation where
an unlawful discharge is alleged is not answered by discrediting
a respondent’s asserted reason for the discharge. Rather, the
answer to that question rests upon an evaluation of all the rele-
vant evidence.”39 Mere suspicion that animosity toward pro-
tected activity may have motivated or contributed to the deci-
sion to lay off Crosby is not enough. Derfoldi may have been
wrong in his assessment of Crosby’s work; he may have exag-
gerated his performance deficiencies, but unless there is evi-
dence that he was motivated in his selection of Crosby by
unlawful considerations, the accuracy of his perceptions is not

39 See also Pullman Power Products, 275 NLRB 765, 767 (1985).
critical. It is merely a factor to be considered in an evaluation
of all the relevant evidence. Inaccuracy alone cannot prove
unlawful motive, and there is no other evidence that Derfoldi
had any animosity toward Crosby’s protected activities.
Further, the selection of Crosby for layoff was not Derfoldi’s
decision alone. The evidence shows that Sorensen and Madden
concurred. There is no basis for me to infer that they were
influenced by improper animus. Moreover, Derfoldi, even if
mistaken in his assessment of the quality of Crosby’s work or
work ethic, had a concrete and lawful reason for selecting
Crosby for layoff. Credited testimony establishes that Crosby
engaged in inappropriate, if not insubordinate, behavior when
he told Derfoldi that he did not recognize his or Sorenson’s
authority. Crosby’s conduct in that instance was in no way
protected. Derfoldi testified that Crosby’s noncompliant be-
havior to him colored all other factors relied on in selecting
Crosby. There is no persuasive evidence that contradicts Der-
foldi’s explanations of why he selected Crosby for layoff. I
find, therefore, that the necessary link between Crosby’s layoff
and his protected activities has not been established. The Gen-
eral Counsel has not, therefore, provided evidence sufficient to
support an inference that animosity toward Crosby’s protected
activity was a motivating factor in his layoff and, thus, has not
established a prima facie case. Accordingly, I find the General
Counsel failed to meet his burden of proof to show that Re-
spondent was motivated by unlawful considerations and vio-
lated Section 8(a)(1) of the Act by laying off Crosby. Inasmuch
as I have found that the General Counsel has failed to establish
a prima facie case that Respondent interfered with, restrained,
and coerced employees in the exercise of the rights guaranteed
in Section 7 of the act by laying off Crosby, the companion
allegation of unlawful refusal to reinstate also fails. Accord-
ingly, I shall dismiss those allegations of the complaint pertain-
ing to the layoff of Crosby.
CONCLUSIONS OF LAW
1. By equating protected activity with disloyalty, making
implied threats of reprisal, and prohibiting employees from
talking with others about protected activities, including Board
proceedings, Respondent has engaged in unfair labor practices
affecting commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. Respondent has not violated the Act in any other manner
alleged in the complaint.
REMEDY
Having found that Respondent has engaged in certain unfair
labor practices, I find that it must be ordered to cease and desist
and to take certain affirmative action designed to effectuate the
policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended40
40 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended 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 purposes.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1152
ORDER
The Respondent, Carrier Corporation, Las Vegas, Nevada,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Equating protected activity with disloyalty to Carrier
Corporation.
(b) Making implied threats of reprisals to employees because
they engaged in protected concerted activities.
(c) Prohibiting employees from talking with others about
concerted protected activities, including Board proceedings.
(d) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its fa-
cility in Las Vegas, Nevada, copies of the attached notice
marked “Appendix.”41 Copies of the notice, on forms provided
by the Regional Director for Region 28, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to ensure that the notices
are not altered, defaced, or covered by any other material. In
the event that, during the pendency of these proceedings, the
Respondent has gone out of business or closed the facility in-
volved in these proceedings, the Respondent shall duplicate and
mail, at its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respondent at
any time since May 2000.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official

41 If this Order is enforced by a judgment of the United States court
of appeals, the words in the notice reading “Posted by Order of the
National Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint be dis-
missed insofar as it alleges violations of the Act not specifically
found.
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 ordered 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 protection
To choose not to engage in any of these protected
concerted activities.

WE WILL NOT equate protected activity with disloyalty to
Carrier Corporation.
WE WILL NOT make implied threats of reprisals to you be-
cause you engage in activities protected under Section 7 of the
Act, described above.
WE WILL NOT prohibit you from talking with others about
activities, including Board proceedings, protected under Sec-
tion 7 of the Act, described above.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.

CARRIER CORPORATION