Dynamics Corp. Of America

National Labor Relations Board - Board Decisions

Mar 12, 1985

274 N.L.R.B. 880 (N.L.R.B. 1985)

880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fermont , A Division of Dynamics Corporation of
America and Teamsters Local Union No. 1040,
Brewery and Soft Drink Workers, Liquor Driv-
ers & New and Used Car Workers a/w Interna-
tional Brotherhood of Teamsters , Chauffeurs,
Warehousmen & Helpers of America . Case 39-
CA-1592
12 March 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 29 August 1984 Administrative Law Judge
James F. Morton issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed an answering brief.
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, i and
conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Fermont, A
Division of Dynamics Corporation of America,
Bridgeport, Connecticut, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 The Respondent excepted to the judge's recommended Order, which
directs the Respondent to reinstate Nolting and make him whole for any
losses he may have suffered The Respondent alleges that subsequent to
his layoff Nolting engaged in conduct which would make him unfit for
employment with the Respondent, and therefore the judge erred in or-
dering Nolting's reinstatement We find it unnecessary to pass on this
issue as the Respondent's allegations may be raised and fully litigated in
the compliance stage of this proceeding
DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. The
complaint issued on May 9, 1983, and alleges that Fer-
mont, A Division of Dynamics Corporation of America
(Respondent) has violated Section 8(a)(1) and (4) of the
National Labor Relations Act (the Act). Respondent's
answer placed in issue whether or not Respondent (1)
threatened, to discharge employees to discourage them
from criticizing the allegedly unsafe conditions of Re-
spondent's trucks, and'(2) suspended and changed the job
274 NLRB No. 131
duties of John Reynolds and also laid off Charles Nolting
because of their complaints as to the allegedly unsafe
conditions of Respondent's trucks Also at issue is wheth-
er Reynolds' suspension and the alleged change in his job
duties were the result of his having testified in a Board
proceeding. I held the hearing on these issues in Hart-
ford, Connecticut, on October 19 and 20, 1983.
On the entire record, including my observation of the
demeanor of the witnesses, and after full consideration
on the briefs filed by the General Counsel and the Re-
spondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a New York corporation with offices
and a manufacturing facility in Bridgeport, Connecticut
(the only facility involved herein), engaged in the assem-
bly of diesel engine generator sets. During the 12 months
ending November 30, 1982, a representative period, Re-
spondent shipped goods valued at $50,000 directly to
points outside the State of Connecticut in the regular
course and conduct of its business.
II THE EVIDENCE
A. General
The unfair labor practices are alleged to have taken
place in March and April 1983. All dates hereafter are
for 1983, unless otherwise specified.
The two individuals who are alleged to have been un-
lawfully disciplined by Respondent (i.e, Reynolds and
Nolting) were working in early 1983 as truckdrivers
under Respondent's traffic manager William Bierswirth.
The evidence is uncontroverted that they had, at various
times, jointly complained to Bierswith about the condi-
tion of Respondent's trucks in that they expressed their
concern as to "lost brakes, flat tires, no brakes . .. .
B The Alleged Threat on March 17
The complaint alleges, and the answer denies, that
about March 17 Responent's traffic manager Bierswirth
threatened to discharge employees because they engaged
in protected activities.
Reynolds testified for the General Counsel that be-
cause he and Nolting were not getting any satisfaction
from Bierswirth respecting the safety complaints they
had made, they talked with Respondent's plant manager
Frank Aganito on March 17 about those matters. Ac-
cording to Reynolds, he and Nolting were called to
Bierswirth's office soon after that meeting ended, where
they were told by Bierswirth, in language somewhat less
than elegant, that they would be discharged if they com-
plained again to Aganito.
Nolting's testimony corroborated Reynolds' account.
Aganito testified for Respondent; his account indicates
that Reynolds and Nolting had brought safety complaints
to his attention and to that extent his account corrobo-
rates Reynolds.
Bierswirth also testified for Respondent Bierswirth an-
swered, "No, sir" when asked by Respondent's counsel if
DYNAMICS CORP
he ever threatened Reynolds and Nolting with discharge
He did not deny that he ever discussed with them their
having gone over his head to Aganito, or that he met
with them on March 17 nor did he relate what transpired
at any meeting in his office with Reynolds and Nolting
on that day.
I credit the corroborated account of Reynolds over
the bare denial by Bierswirth
C. Suspension of Reynolds
On March 22 , Reynolds truck was involved in a minor
accident Two days later, March 24, he was suspended
from work and was informed that , upon his return from
suspension , he would no longer regularly operate an
over-the-road vehicle The General Counsel contends
that Respondent seized on the March 22 incident as a
pretext in order to discriminate against Reynolds because
of his persistent protests with Nolting that the trucks Re-
spondent had were unsafe and also because Reynolds
had testified against Respondent in another Board hear-
ing. Respondent asserts that the discipline it meted out to
Reynolds was not unlawfully motivated . A resolution of
these contentions requires, first , an examination into the
events of March 22, then a consideration of the events of
March 24 and , lastly, a discussion as to the merits of the
reasons offered by Respondent for its having suspended
Reynolds.
1. The March 22 incident
Reynolds testified that on March 22 he was dispatched
by Leadman Mike Clemens to make a delivery to Anco,
a customer located less than a mile from Respondent's
facility He made that delivery and noticed then that a
signal light was not operating. He took a slightly longer
route to return to Respondent's location in order to
make a stop at a parts store to pick up a signal light. He
stopped his truck preliminary to turning into the parking
lot. A car, passing by, struck the truck and caused some
damage
Reynolds testified further as follows. He immediately
notified Respondent of the accident. His supervisor
Bierswirth, Plant Manager Aganito, Personnel Manager
Adante, Leadman Clemens, and Respondent's safety di-
rector Campbell came to the scene of the accident
Reynolds told them that he was at that location in order
to get a replacement for the defective signal light.
The driver of the passenger car was issued a citation
by the police, Reynolds was not. Reynolds heard noth-
ing further about the incident until he was given the
March 24 suspension notice, discussed in detail below.
Traffic Manager Bierswirth and Plant, Manager Agan-
ito testified for Respondent about the events of March
22. Respondent's personnel manager, its safety director,
and its leadman did not testify Bierswirth testified that
he, not Leadman Clemens, dispatched Reynolds to
Anco Bierswirth testified further that he told Reynolds
to return immediately to Respondent's plant after the de-
livery to Anco was completed and explained to Reyn-
olds that the truck was needed in order to make a gener-
ator delivery that evening. Bierswirth testified that he
881
then repeated those instructions to Reynolds in the pres-
ence of Leadman Clemens
Plant Manager Aganito testified that, when he,and the
other management representatives went to the'accident
scene, Reynolds told them that he "was going for a light
bulb" and "Aganito assumed that that was because the
bulb was out Aganito testified' that Reynolds explained
that the accident was not his fault. -
The only relevant credibility issue raised by the fore-
going accounts is whether Reynolds was dispatched by
Leadman Clemens (as Reynolds testified) or by Biers-
wirth (as Bierswirth testified) That issue must be consid-
ered in light of Bierswirth's statement on the March 24
suspension notice (discussed below) that Reynolds dis-
obeyed a direct order given by Bierswirth when he was
dispatched on March 22. I credit Reynolds' account. It is
more likely that he was routinely dispatched, as he testy
fied, as the Anco-plant was very close by It is less prob-
able that Bierswirth would have told him twice to return
forthwith or that Bierswirth would have (as his testimo-
ny indicates) made a special point of doing so in the
presence of the leadman I note, too, that there is no evi-
dence that Bierswirth or any other management repre-
sentative made reference later on March 22 to any assert-
ed failure of Reynolds to return directly Perhaps, if
there were independent corroboration of Bierswirth's ac-
count, the probabilities might have weighed in favor of it
but, in light of the overall record in this case, I credit
Reynolds' account and not Bierswirth's
2. The March 24 suspension
Reynolds was called to Bierswirth 's office on March
24 and, in the presence of Personnel Manager Adante, he
was given a memorandum signed by Traffic Manager
Bierswirth which read:
On 3/22/83 I instructed you to take bases to
Anco and return immediately afterwards to get the
750 inside At approximately 2.50 p m I received a
phone call that you were in an accident in the area
of D'Addario industries on Boston Avenue.
You told me that you came to this area to buy a
light bulb for the truck.
You disobeyed my direct orders, and you had no
authority to be off your assigned route without my
persmission.
This truck, as you know has dust come back from
repair and refurbishment, part of which was due to
your careless disregard of the truck during the
snowstorm several weeks ago when you burned out
the clutch. (The repair cost was over $700.)
In light of the above, you are hereby suspended
for 10 days without pay. Your return to work date
is Friday, April 8, 1983
Upon return, you will not operate an over the
road vehicle for the Company on a regular basis,
but will be assigned instead to inside fork lift oper-
ation.
Further occurrence of carelessness, destruction,
damage, disobedience or other serious infraction of
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company rules will result in further disciplinary
action; including possible discharge.
Reynolds testified that he read the notice and said then
that he was in "disagreement with it," that he had not
been off his route on March 22, and that it was "stand-
ard practice to pick up light bulbs, oil and such " Reyn-
olds related also that Adante looked bewildered and that
Bierswirth got very irate. Bierswirth, according to Reyn-
olds, threw the suspension notice at him and told him to
get out of the office.
Respondent's personnel manager testified as follows
about that meeting. Bierswirth handed Reynolds the
notice. Reynolds read it. He was not happy with it but
he accepted it. Adante did not remember what Reynolds
said . Adante believed that Reynolds felt that he had
done nothing to receive a suspension
I credit Reynolds' account as it seems unlikely to me
that he would have accepted the suspension, as Adante
characterized it, and as Adante's testimony was not cor-
roborated.
3. The reason given by Respondent for disciplining
Reynolds
Personnel Manager Adante testified that he did the
"paperwork" relating to the discipline meted out to
Reynolds on March 24 and, in connection with it, he dis-
cussed the matter with Plant Manager Aganito and Traf-
fic Manager Bierswirth Adante testified that Aganito
had made the final decision thereon and that Reynolds
was suspended because he did not come back to the
plant immediately after making the Anco delivery on
March 22.
Aganito testified that he based his decision to suspend
Reynolds on Reynolds' "insubordination" in not having
followed Bierswirth's orders to return to the plant imme-
diately after completing the Anco delivery on March 22.
Aganito testified also that his decision was also influ-
enced by his perception of Reynolds as one who was
"accident prone" in that Reynolds had been involved in
two accidents, one nonwork related and the other due to
mechanical defects in Respondent's truck I note, inci-
dentally, that there is nothing in the March 24 suspension
notice to suggest that Respondent viewed Reynolds as
accident prone.
As to the specific reasons set out in the March 14
notice, the following observations are pertinent. The first
paragraph states that Bierswirth "instructed" Reynolds
on March 22 to return immediately to the plant upon
completing the Anco delivery. As discussed above, I do
not credit Bierswirth's testimony that he gave such an in-
struction to Reynolds. Rather, I have credited Reynold's
account that he was routinely dispatched to Anco on
March 22 by Leadman Clemens
In the fourth paragraph of the March 24 notice, Biers-
wirth stated in substance that the truck which Reynolds
had driven on March 22 was the same vehicle that Reyn-
olds had driven earlier in so careless a manner that its
clutch had been burned out. Under examination by the
General Counsel, Bierswirth acknowledged that the
truck used by Reynolds on March 22 was not the same
truck. Bierswirth also testified that, in making the state-
ment on the March 24 notice that the truck was the
same, he had relied on a written report prepared by
Plant Manager Aganito about Aganito's having observed
how Reynolds had burned out the clutch. Respondent
did not proffer in evidence any report prepared by
Aganito as to that matter, nor did Aganito during the
course of his testimony state that he had prepared a writ-
ten report thereon.
Respondent's personnel manager Adante who (as
noted above) had testified that he handled the "paper-
work" relative to Reynolds' suspension made no refer-
ence in his testimony as to his ever having seen any
report prepared by Aganito concerning any incident
during which Reynolds caused the clutch of a vehicle to
be burned out.
Bierswirth testified that when he received the written
report from Aganito about the burned out clutch inci-
dent, Bierswirth "laced into" Reynolds for having
caused that damage. Reynolds controverted that testimo-
ny by his assertion that the first time Bierswirth ever in-
dicated to him that he had burned out any clutch was on
March 24, when he read the suspension notice.
I credit Reynolds' account and discredit Bierswirth's
testimony that he had "laced into" Reynolds. In making
that determination, I note that the written report, on
which Bierswirth said he replied, was not offered in evi-
dence, that Aganito did not corroborate material aspects
of Bierswirth's account and also that Bierswirth conced-
ed that his statement on March 24 that the truck driven
on March 22 by Reynolds was the same one on which
he had burned out a clutch was not accurate.
The complaint alleges that Reynolds' job duties were
unlawfully changed. In that regard, the March 24 notice
states also that, on his return from his suspension, Reyn-
olds would no longer regularly operate an over-the-road
vehicle. In fact, when he did return from his suspension,
he resumed his regular duties. The other driver, Nolting,
had performed Reynolds' job during his suspension.
Nolting, however, was laid off upon Reynolds' return.
Nolting's layoff is discussed separately below.
The complaint further alleges that Reynolds' suspen-
sion and the alleged change in his job duties were also
based on the fact that Reynolds had testified against Re-
spondent in another Board case. In support of that alle-
gation , the General Counsel placed in evidence copies of
transcript pages of testimony given by Reynolds in an-
other unfair labor practice hearing. It appears, from a pe-
rusal of those papers, that Reynolds' testimony in that
case was offered to corroborate another witness as to an
issue that was not particularly clear or significant. At the
hearing before me, Reynolds related that after he had ap-
peared as a witness in the earlier case in February, Biers-
wirth told him that Bierswirth had heard that Reynolds
had testified about an altercation that had taken place.
Reynolds testified before me that he had told Bierswirth
then that he refused to discuss the matter.
In June, Reynolds voluntarily left his employment
with Respondent.
DYNAMICS CORP
D. Alleged Discriminatory Layoff of Nolting
The General Counsel asserts that Respondent laid
Nolting off in violation of Section 8(a)(1) because he
joined with Reynolds in pressing for action on their
safety complaints and because he continued to pursue
these claims while Reynolds was on suspension Re-
spondent contends that it laid Nolting off solely for eco-
nomic reasons.
During the period of Reynolds' suspension, Nolting
performed much of the truckdriving previously done by
Reynolds. Nolting testified that on March 25 he met
with Aganito in the latter's office and complained to him
about the asserted poor conditions of a truck, a matter
which he and Reynolds had brought to Aganito's atten-
tion on March 17. While this meeting was in progress,
Bierswirth entered the office and told Nolting, in effect,
that he was going to put a stop to Nolting's going over
his head with complaints.
Nolting testified further that, on March 31, he brought
additional safety matters to the attention of Bierswirth
and Aganito. On that day he was instructed to drive a
truck which had fluid leaking from its front wheel bear-
ings. Nolting reported the problem to Bierswirth who re-
sponded that he had heard enough about safety and that
Nolting "would have to drive the truck good, bad or in-
different." Nolting followed those instructions. Biers-
wirth did not deny this incident occurred, and I credit
Nolting that it did, in fact, take place.
Later the same day, Nolting met with Aganito and
Bierswirth. Nolting's safety complaints then met with
criticism from Bierswirth who left the room while Nolt-
ing and Aganito continued their discussion. According to
Nolting, Aganito became agitated and said, in essence,
that when Nolting and Reynolds came to him with
safety complaints, it made him look foolish for defending
Bierswirth and that if it did not stop "he would be on
the outside looking in."
Aganito denied meeting with Nolting on March 25 or
ever telling him that he would be on the outside looking
in for bringing safety complaints. I credit Nolting's ac-
count of these events as against Aganito' s denial that he
did not meet with Nolting "on that day" (meaning
March 25) or that he made any threats against Nolting
for his safety complaints.' Bierswirth did not testify
about either of the meetings or the alleged statements.
On April 8 Nolting complained to Bierswirth that the
truck he had been driving had no rear lights, and that he
had almost been involved in two rear-end collisions.
Bierswirth told him it would be taken out of service as
soon as possible. Later the same day, Nolting reported to
Bierswirth that the signal lights and running lights on an-
1 The General Counsel, in his brief, stated that Aganito's statement on
March 31 should be found violative of the Act, although not alleged in
the complaint In support thereof, he cited Homemaker Shops, 261 NLRB
441 fn 5 (1982) The facts of that case are readily distinguishable from
those in the instant case More significantly, the criterion for finding a
specific violation absent a precise allegation thereon have been set out in
Chandler Motors, 276 NLRB 1565 (1978) Consistent with that approach,
my finding is that , as the complaint before me contains no allegation that
Aganito unlawfully threatened employees on Respondent's behalf, it
would not be appropriate to determine now that his comments on March
31 were violative of Sec 8(a)(1) See also American Pistachio Corp, 249
NLRB 1193, 1197 (1980)
883
other trailer had gone out. Bierswirth directed him to
take the vehicle to a repair shop. While there, Nolting
received a message to return to Respondent's premises.
On his return, he was given a layoff slip by Bierswirth.
The reason stated thereon was lack of work. Nolting tes-
tified that he told Bierswirth that work was plentiful and
that Bierswirth's response was simply that nothing could
be done.
Early the following week, Nolting met with Adante
concerning the possibility of "bumping" into another job
in accordance with Respondent's policy which would
have permitted him to take the job of any employee less
senior than himself for which he was qualified. Specifi-
cally, Nolting inquired about a job of operating the tow
motor in the sheet metal department. Adante agreed that
the employee who was doing that job was less senior
than Nolting and that it was a possibility. However,
Adante also pointed out that the sheet metal department
job was at a lower rate of pay than the job Nolting had
held and that Nolting might fare better on unemploy-
ment. Adante then left the decision to Nolting. When he
next saw Nolting several days later, Nolting told him he
was not interested in the sheet metal department posi-
tion.
Nolting testified that the job in the sheet metal depart-
ment was the "exact same thing" as his job in the traffic
department had been, but the sheet metal operators did
not move the big generator sets or drive the tractor-trail-
er. He told Adante that he did not want the job at the
lower rate and suggested that they keep him at his
higher rate so he could continue to drive the trucks
when necessary. However, Adante told him that the job
was only being offered at the lower wage. At the date of
this hearing, Nolting had not yet been contacted for fur-
ther employment.
Respondent contends that Nolting's layoff was based
solely on economic considerations. Its plant manager,
Aganito, testified as follows concerning economic
changes and attendant layoffs at Respondent's plant. He
reviewed the company finances, sales, and backlog
before deciding, in mid-March, to decrease the size of
the traffic department. His decision to lay off Nolting in
particular was based on seniority. Aganito had originally
planned to lay off Nolting in mid-March but decided to
keep him on to cover for Reynolds during the latter's
suspension. (I infer from this that Reynolds, on his return
would resume his normal duties. No attempt was made
to reconcile that testimony with the statement in Reyn-
olds' suspension notice that he would no longer operate
over-the-road vehicles, the principal aspect of his job,
after he returned from his suspension.)
Respondent offered the following evidence in support
of its economic defense. Its business consists of sales to
private firms and to the Federal Government. Aganito
testified that its commercial sales were "up to a
$1,000,000" in January and only $100,000 in March. No
documentary evidence thereon was proferred. No testi-
mony was offered as to the volume of sales to the Feder-
al Government or any fluctuations therein.
Aganito also testified that he kept a 3-month, rolling
business forecast which reflected the Company's backlog.
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He asserted that, "Our commercial business-our back-
log, you know, we get backlog many months in advance.
We have knowledge of our business and we know that
it's coming to a decline and I think our records show."
However, as previously noted, no supporting documenta-
tion was ever introduced.
Both Aganito and Adante testified that there had been
layoffs before Nolting's. Aganito stated that, during the 7
months between Nolting's layoff and the hearing in this
case, the employee complement had been reduced by
about one-third, from 280 to 205 employees. Respondent
also introduced weekly summaries naming employees
who were laid off, which were regularly prepared by
Adante's secretary. These summaries showed that 50 em-
ployees had been laid off during the interval between
January 7 and October 14. Adante further explained that
the prepared summaries did not include those employees
who departed Respondent's employ of their own voli-
tion
In response to Respondent's economic defense, the
General Counsel offered the following. Reynolds related
that the volume of work upon his return to work "was at
the same pace" and that included overtime assignments
Reynolds further testified that employees from other de-
partments we're brought into the traffic department to
perform tow motor work, i.e., work that Nolting had
performed before his layoff. Reynolds stated that, prior
to Nolting's layoff, he had never seen those employees
performing such work in the traffic department. Re-
spondent did not controvert that testimony
III. ANALYSIS
A. The Alleged Threat
The credited evidence is' that Respondent by its Traf-
fic Manager Bierswirth told Reynolds and Nolting on
March 17 that they would be discharged if they contin-
ued to complain to the plant manager as to safety condi-
tions. As the communication of this statement to employ-
ees would clearly have the effect of coercing and intimi-
dating employees because of the exercise of their Section
7 rights, Respondent thereby violated Section 8(a)(1) of
the Act See Chambers Development Co, 267 NLRB 611
(1983). The uncontroverted evidence further establishes
that, on March 25, Bierswirth told Nolting that his com-
plaints would stop one way or another and that, on
March 31, Bierswirth told him he was tired of hearing
complaints about the safety of the trucks. Both of those
statements were also coercive and as they were clearly
related to the complaint allegations respecting threats by
Bierswirth, I find they also were violative of Section
8(a)(1) See Homemaker Shops, 261 NLRB 441 (1982),
and the discussion, supra, at footnote I in this decision.
B Alleged Discrimination Against Reynolds
The totality of the evidence in this case, including
those aspects discussed above, establishes clearly that
Reynolds, with his coemployee Nolting, acted in concert
respecting their complaints about safe operations of the
traffic department where they worked. It is too obvious
from the uncontroverted evidence and also from the
credited evidence that Respondent was aware of the con-
certed nature of those activities I thus find that their ac-
tivities in that regard were concerted and protected by
the Act. See Meyers Industries, 268 NLRB 493 (1984).
The credited evidence also discloses that Reynolds
made a routine delivery on March 22, that he was re-
turning to Respondent's premises via a slightly different
route than the one he left by, that he did so to purchase
a replacement bulb, that his truck was damaged by the
careless driving of another, and that Respondent's offi-
cials appeared to acknowledge all the foregoing by their
actions on that day. Two days later, Respondent sus-
pended Reynolds on the basis of a notice that I find was
factually in error. Those errors, I find, were entered on
that notice knowingly and intentionally. Respondent's ef-
forts to support the entries on that report were uncon-
vincing as is obvious from the discussion above, includ-
ing Respondent's failure to produce an alleged written
report prepared by Aganito.
Based on the evidence of Reynolds' protected activi-
ties, of the animus exhibited by Bierswirth's threat on
March 17, of the timing of Reynolds' suspension relative
to that threat, and the obviously pretextual basis given
by Respondent for suspending Reynolds, I find that the
General Counsel has made out a strong prima facie
showing that Reynolds' suspension was based on his
having engaged in concerted protests as to safety condi-
tions in his department See Wright Line, 251 NLRB
1083 (1980). I find further that Respondent has failed to
demonstrate that it would have suspended Reynolds for
nondiscriminatory reasons. See NLRB v. Transportation
Management Corp, 462 U.S. 393, (1983) In view of the
foregoing, I conclude that Respondent's suspension of
Reynolds violated Section 8(a)(1) of the Act. See Class
Watch Strap Co., 267 NLRB 276 (1983)
C. Alleged Change in Reynolds' Duties
Notwithstanding the statement in the March 24 notice
that Reynolds would no longer regularly operate over-
the-road trailers upon his return to work from his sus-
pension, Reynolds did, in fact, continue to operate such
equipment on a regular basis. Respondent explained that
change in its position as due to the layoff of Nolting, dis-
cussed below. I thus find that there is no factual basis to
sustain the allegation that Reynolds' job duties were
changed Nonetheless, as I have found that the March 24
notice was unlawfully motivated, it is apparent that the
statement Respondent made therein, that Reynolds
would no longer regularly operate over-the-road equip-
ment, tended to discourage Reynolds from continuing to
engage in activities protected by Section 7 of the Act. I
thus find that Respondent thereby interfered with, re-
strained, and coerced employees with respect to their
Section 7 rights and, thus, violated Section 8(a)(1) of the
Act. Cf. Electric Hose & Rubber Co., 265 NLRB 696
(1982).
D Section 8(a)(4)
The complaint alleges that the March 24 notice was
separately aimed at penalizing Reynolds for having testi-
fied against Respondent in February in another unfair
labor practice case before the Board. In order to prove
DYNAMICS CORP
such a violation, the General Counsel must show a nexus
between the giving of testimony and the disciplinary
action In the instant case, the evidence is insufficient to
establish such 'a nexus as there is a significant time lapse
between the events and no independent evidence to
bridge the gap. See Howard Johnson Motor Lodge, 261
NLRB 866, 872 (1982)
E. Nolting's Layoff
I credit Reynolds' account, essentially uncontroverted,
that there was plenty of work for Nolting to do at the
time of his layoff and that Respondent, although it in-
formed Nolting he was laid off for lack of work, utilized
employees from other departments and overtime assign-
ments to perform the duties that Nolting would have. In
substance, the reason Respondent asserted as the basis to
lay off Nolting was pretextual It is apparent to me that
his layoff was attributable instead to his having contin-
ued to press safety complaints and it was a fulfillment of
Aganito's promise to him that he "would be on the out-
side looking in" for having continued to do so.
The General Counsel has made out a prima facie case
respecting the unlawful layoff of Nolting. Respondent of-
fered little persuasive evidence to rebut it.2 Rather, its
explanation that it waited to lay off Nolting until Reyn-
olds returned from suspension appears to conflict with its
threat to Reynolds on March 24 that he would no longer
regularly operate over-the-road equipment If anything,
that explanation buttresses the prima facie showing made
by the General Counsel Accordingly, I find that Nolting
was laid off because he had engaged in concerted activi-
ties protected by Section 7 of the Act and that Respond-
ent by that conduct has violated Section 8(a)(1) of the
Act.
On the foregoing findings of fact and on the entire
record herein, I make the following
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. By having (a) threatened to discharge employees,
(b) threatened to change an employee's job duties, (c)
threatened unspecified reprisals, (d) suspended employee
John Reynolds, and (e) laid off employee Charles Nolt-
ing in order to discourage its employees from engaging
in concerted activities protected by Section 7 of the Act,
Respondent has violated Section 8(a)(1)
3. Respondent did not violate Section 8(a)(4) of the
Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find it necessary to order Re-
2 Respondent's defense is premised largely upon Aganito's assertions
that there was a downward trend in the commercial business Where
there are statements which documents would support (as Agamto admit-
ted there are), coupled with a failure to introduce those documents, an
inference arises that the documents would not support the claim Town &
Country Gas Service Co, 255 NLRB 1149, 1151 (1980), enfd 687 F 2d 187
(7th Cir 1982)
885
spondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies
of the Act.
Respondent, having discriminatorily suspended John
Reynolds, I find it necessary to order it to reimburse him
for any loss of earnings or seniority he may have suf-
fered for this unlawful suspension In addition, in regard
to the Respondent having discriminatorily laid off and in
effect discharged Charles Nolting, I find it necessary to
order it to offer him immediate and full reinstatement
without prejudice to his seniority or other rights previ-
ously enjoyed, and make him whole for any loss of earn-
ings he may have suffered by reason of his unlawful
layoff and discharge. Backpay with interest thereon is to
be computed in the manner prescribed in F. W. Wool-
worth Co., 90 NLRB 289 (1951), Florida Steel Corp., 231
NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716
(1962).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed3
ORDER
The Respondent, Fermont, A Division of Dynamics
Corporation of America, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Suspending, laying off, threatening, or otherwise
discriminating against any employee for engaging in pro-
tected concerted activity
(b) In any like or related manner interfering with, re-
straining, or coercing in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act.
(a) Offer Charles Nolting immediate and full reinstate-
ment to his former job or, if that job no longer exists, to
a substantially equivalent position, without prejudice to
his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings he
may have suffered by reason of his unlawful suspension
and discharge by Respondent in the manner set forth in
the section herein entitled "The Remedy."
(b) Reimburse and make whole John Reynolds for any
loss suffered by him as a result of his 10-day suspension.
(c) Expunge from Respondent's files any and all refer-
ences to Nolting's layoff and to Reynolds' suspension
and notify them in writing that this has been done and
that evidence of those unlawful acts will not be used as a
basis for future personnel actions against them.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order. '
3 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
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Post at its plant in Bridgeport, Connecticut, copies
of the attached notice marked "Appendix."4 Copies of
the notice, on forms provided by the Officer in Charge
of Subregion 39, after being signed by the Respondent's
authorized representative, shall be posted by the Re-
spondent immediately upon receipt and maintained for 60
consecutive days in conspicuous places including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material
(f) Notify the Officer in Charge in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint alle-
gation that Respondent has violated Section 8(a)(4) of
the Act is dismissed.
If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
change in job duties or with other reprisals to discourage
them from concertedly discussing and presenting safety
complaints.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees with respect to
the exercise of their rights under Section 7 of the Act.
WE WILL reimburse John Reynolds for all moneys he
lost, with interest, as a result of our having unlawfully
suspended him from work without pay for 10 days be-
cause he joined with a coemployee in complaining about
safety conditions on their jobs.
WE WILL offer Charles Nolting his job back in full, or
the equivalent if it no longer exists, and WE WILL make
him whole, with interest, for all losses he suffered as a
result of his having been laid off because he engaged in
concerted activities protected by the National Labor Re-
lations Act.
WE WILL remove from the personnel files of Charles
Nolting every reference to his unlawful layoff and from
the personnel files of John Reynolds every reference to
his unlawful suspension and we wil notify them in writ-
ing that we have done this and that those unlawful acts
on our part will not be used as a basis for future discipli-
nary actions against them.
FERMONT, A DIVISION OF DYNAMICS COR-
PORATION OF AMERICA
WE WILL NOT suspend or lay off any of our employ-
ees, or threaten our employees with discharge, with