Industrial Materials Clearance Inc.

National Labor Relations Board - Board Decisions

Apr 30, 2004

341 N.L.R.B. 622 (N.L.R.B. 2004)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 622
Industrial Materials Clearance, Inc. and David Pow-
ers and Local 247, International Brotherhood of
Teamsters, AFL–CIO. Cases 7–CA–46312 and
7–RC–22490
April 30, 2004
DECISION, ORDER, AND DIRECTION
BY MEMBERS SCHAUMBER, WALSH, AND MEISBURG
On November 5, 2003, Administrative Law Judge
David L. Evans issued the attached decision. The Re-
spondent filed exceptions and a supporting brief. The
General Counsel filed an answering brief.1
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,2 and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Industrial Materials Clear-
ance, Inc., Romulus, Michigan, its officers, agents, suc-

1 There are no exceptions to the judge’s findings that the Respondent
violated Sec. 8(a)(1) by coercively asking employee Horton to tell the
Union to withdraw its election petition, by coercively interrogating
Horton, and by questioning employees Horton and Messer in prepara-
tion for the unfair labor practice hearing without complying with the
safeguards established in Johnnie’s Poultry Co., 146 NLRB 770
(1964), enf. denied 344 F.2d 617 (8th Cir. 1965).
2 In adopting the judge’s finding that employee David Powers was
discharged on May 28, 2003 in violation of Sec. 8(a)(3) and (1), we
find, as the judge ultimately did, that the confluence of all the circum-
stances supports an inference that the Respondent knew of Powers’
union activities when it discharged him, and that those activities were a
motivating factor in his discharge. We therefore find it unnecessary to
pass on the judge’s suggestion that unlawful motivation for Powers’
discharge could be inferred from the timing of the discharge alone. We
also find it unnecessary to rely on the statement of the Respondent’s
owner, Mitch Foster, in 2002, that he would do “what it took” to get the
Teamsters out at the end of their contract, as a basis for finding that
Powers’ discharge was unlawfully motivated.
In adopting the judge’s finding that the Respondent did not show
that it would have discharged Powers in the absence of his union activi-
ties, we also rely on Powers’ testimony that the Respondent’s comptrol-
ler told him in May 2003 that the Respondent was in good economic
condition. Although not mentioned by the judge in his decision, this
testimony was uncontradicted, and we find that it further belies the
Respondent’s contention that Powers would have been discharged in
any event for economic reasons. In reaching this conclusion, we find it
unnecessary to rely on the adverse inferences which the judge drew
against the Respondent because it did not present documents or addi-
tional witnesses to further support its asserted economic justification.
Member Walsh joins his colleagues in relying on this additional tes-
timony of Powers. In all other respects, Member Walsh would adopt
the rationale of the judge in its entirety.
cessors, and assigns, shall take the actions set forth in the
Order.
DIRECTION
IT IS DIRECTED that the Regional Director for Region 7
shall, within 14 days from the date of this Decision, Or-
der, and Direction, open and count the ballot of David
Powers. The Regional Director shall then prepare and
serve on the parties a revised tally of ballots and issue the
appropriate certification.

Erickson C.N. Karmol, Esq., for the General Counsel.
Thomas F. Campbell, Esq., of Northville, Michigan, for the
Respondent.
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge. This case,under
the National Labor Relations Act (the Act), was tried before me
in Detroit, Michigan, on August 20–21, 2003.1 On June 3, in
Case 7–RC–22490 (the representation case), Teamsters Local
Union No. 247, AFL–CIO (Petitioner or the Union) filed a
petition with the National Labor Relations Board (the Board)
seeking certification as the collective-bargaining representative
of all mechanics of Industrial Materials Clearance, Inc. (Em-
ployer or the Respondent). On June 9, in Case 7–CA–46312
(the unfair labor practice case), David Powers, an individual,
filed a charge alleging that the Respondent had committed vari-
ous unfair labor practices under Section 8(a)(1) and (3) of the
Act.2 On July 14, pursuant to a Stipulated Election Agreement,
agents of the Regional Director conducted an election among
the Employer’s mechanics; the results of that election were that
one vote had been cast for representation by the Petitioner, one
vote had been cast against such representation, and there was
one challenged ballot. The challenge therefore affected the
results of the election. On July 30, the Regional Director issued
a document consisting of four parts: (a) a complaint alleging,
inter alia, that, in violation of Section 8(a)(1), the Respondent
had solicited an employee to get the Union to withdraw the
petition in the representation case and that, in violation of Sec-
tion 8(a)(3), the Respondent had discharged Powers; (b) a re-
port on the determinative challenged ballot, which ballot had
been cast by Powers; (c) an order consolidating the representa-
tion and unfair labor practice cases; and (d) a notice of a con-
solidated hearing in both cases before an administrative law
judge. The Respondent duly filed an answer to the complaint
1 Unless otherwise indicated, all dates mentioned are in 2003.
2 Sec. 7 of the Act provides that employees “shall have the right to
self-organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective bargain-
ing or other mutual aid or protection.” Sec. 8(a)(1) provides that it is an
unfair labor practice for an employer “to interfere with, restrain, or
coerce employees in the exercise of the rights guaranteed in section 7.”
Sec. 8(a)(3) provides that it is an unfair labor practice for an employer
“by discriminationto encourage or discourage membership in any labor
organization.”
341 NLRB No. 87
INDUSTRIAL MATERIALS CLEARANCE 623
admitting that this matter is properly before the Board but de-
nying the commission of any unfair labor practices.
Upon the testimony and exhibits entered at trial,3 and after
consideration of the briefs that have been filed, I enter the fol-
lowing
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. JURISDICTION AND LABOR ORGANIZATION’S STATUS
As it admits, at all material times the Respondent, a corpora-
tion with an office and place of business in Romulus, Michigan,
has been engaged in the business of providing waste disposal
services to other businesses in the Detroit area. During 2002, in
conducting that business operation, the Respondent derived
gross revenues in excess of $500,000, and it provided services
valued in excess of $50,000 to businesses within Michigan,
each of which during the same period purchased and directly
received goods valued in excess of $50,000 from suppliers
located at points outside Michigan. Therefore, at all material
times the Respondent has been an employer that is engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act. As the Respondent further admits, at all material times
the Union has been a labor organization within the meaning of
Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Facts
The Respondent operates a fleet of trucks; the Respondent’s
truckdrivers haul industrial waste from businesses in the Detroit
area. For maintenance of the trucks, the Respondent also oper-
ates a garage which, until the events of this case, employed
three mechanics; to wit, Powers, Ronald Messer, and George
Horton. For a number of years, the Union has represented the
Respondent’s truckdrivers (which have numbered from 12 to
14); no union has ever represented the Respondent’s mechan-
ics. Mitch B. Foster is the Respondent’s owner and president;
Nick A. Madias is the Respondent’s general manager, and
Madias is the immediate supervisor of the mechanics.
1. The General Counsel’s evidence—the 8(a)(3) allegation
Powers was first employed by the Respondent in 1990; he
then worked until 1997, at which time he voluntarily quit. Pow-
ers was rehired by the Respondent on May 26, 2001, and he
then worked until he was terminated by Madias on May 28.
During his first tenure of employment, Powers worked as a
mechanic, a truckdriver, and a dispatcher; when he quit in
1997, he was a mechanic. When Powers returned in 2001, he
took the position of dispatcher again; after about a year, former
General Manager Jim Mullins made Powers the lead mechanic,
a position at which he remained until his final termination. It is
undisputed that, of the three mechanics that the Respondent
employed at the time of Powers’s termination, Powers was by

3 Certain passages of the transcript have been electronically repro-
duced; some corrections to punctuation have been entered. Where I
quote a witness who restarts an answer, and that restarting is meaning-
less, I sometimes eliminate, without ellipses, words that have become
extraneous; e.g., “Doe said, I mean, he asked” becomes “Doe asked”
Bracketed words have been inserted by me.
far the superior in terms of mechanical knowledge and skill.
Powers is versed in all phases of the trade that are required by
the Respondent, and he was the only mechanic who was li-
censed to do annual inspections that are required for the Re-
spondent’s trucks by the Department of Transportation. As lead
mechanic, Powers spent 90 to 95 percent of his time working
on trucks. The remainder of his working time was consumed by
handling the paperwork of the mechanics and answering the
questions of the other three mechanics. At the time of his ter-
mination, Powers was paid $16 per hour; Messer and Horton
were paid $15 and $14.75 per hour, respectively. Madias, who
was hired by the Respondent to succeed Mullins on December
17, 2002, has no mechanical background.
Early in 2003, Powers applied for a loan with a Detroit-area
lending institution. The lender required a “Verification of Em-
ployment” form to be completed by Powers’s employer.
Madias completed the form for Powers on March 7. In a space
for “Present Position,” Madias wrote: “Shop Foreman.” In a
space for “Probability of Continued Employment,” Madias
wrote: “Very High/Excellent.”
The Respondent’s business is somewhat seasonal; the me-
chanics usually have less work during the colder periods of the
year and much more during the warmer periods. (The mechan-
ics’ personal budgets therefore depend on their greater warm-
weather earnings to compensate for their lesser earnings during
cold weather.) Powers testified that during the months of May
of prior years, the mechanics worked up to 80 hours per week.
In early May 2003, however, the Respondent was holding the
mechanics to 50 hours per week (10 hours per day, 5 days per
week), even though there was more work than could be done in
150 man-hours per week. Horton requested a meeting with
Madias to discuss the matter. Madias met with Powers, Messer,
and Horton on or about May 9.4 When the mechanics asked
why they were not receiving more work hours per week,
Madias replied that Foster had ordered that their hours be held
to 50 per week. When the mechanics asked about the “farming
out” of some work that the Respondent was then doing, Madias
replied that the subcontracting was only a temporary practice
and that it would stop soon. Madias, according to Powers,
added that “[h]e was not planning on letting nobody go or do-
ing no layoffs.” After the meeting, Powers and Horton agreed
that the Union should be contacted.
Powers worked his usual 50 hours during the week of May
19–23. On May 21, Powers telephoned Paul Kozicki, a vice
president and business representative of the Union. Powers told
Kozicki about the mechanics’ discontent with their work
schedules. Kozicki suggested a meeting between himself and
the mechanics.
Powers worked 10 hours on Monday and Tuesday, May 26
and 27. During the evening of May 27, Kozicki met at a local
restaurant with Powers and Horton, both of whom then signed
authorization cards that designated the Union as their collec-
tive-bargaining representative. Powers testified that, after the
meeting with Kozicki he returned to the garage where Messer
4 Powers and Horton testified that this meeting occurred on May 20;
Madias, however, was credible in his testimony that it occurred before
he went on vacation on May 10.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 624
was still at work. Powers then solicited Messer also to sign a
union authorization card, but Messer declined.
Business Agent Kozicki has negotiated and serviced con-
tracts for the Respondent’s truckdrivers since 1994. When
called by the General Counsel, Kozicki testified that 1 week
prior to his meeting with Powers and Horton on May 27, he and
Madias scheduled a luncheon meeting for May 28. At that
meeting, Madias brought up the subject of the Respondent’s
attempts to retrieve a customer that had been lost (at some un-
specified point in the past) to a nonunion competitor. Then
Madias brought up the topic of the Respondent’s then-current
need for a truckdriver who would work a 12-hour shift, from 6
p.m. to 6 a.m. After those subjects were completed, Kozicki
told Madias that “a majority” of the Respondent’s 3 mechanics
had signed authorization cards for the Union and asked Madias
if the Respondent would voluntarily recognize the Union as
those employees’ collective-bargaining representative. Madias
replied that Foster made all such decisions. Kozicki responded
that the Union would send a letter to Foster demanding recogni-
tion for the mechanics and that he would file a petition for elec-
tion with the Board. Madias, further according to Kozicki,
asked Kozicki to delay the filing of a petition because “he
wanted to eliminate a position.” Kozicki replied that he could
not delay the filing because “I have two guys that want to join.”
Kozicki further testified that his May 28 meeting with Madias
ended about 12:35 p.m.
About 3 p.m. on May 28, as Powers ended his shift for the
day, Madias called him to the Respondent’s office area. Ac-
cording to Powers’s undisputed testimony: “Nick Madias said
that he has to eliminate a position in the shop, and the position
was mine, that there is no easy way of doing this.” Powers
asked for a letter stating that he had been discharged; Madias
told him that he could receive one the next day. On May 29,
Powers returned to the office; he did not meet with Madias, but
a clerical employee gave him a letter addressed “To whom it
may concern.” In the letter, Madias states that Powers: “Is no
longer employed at Industrial Materials Clearance, Inc. His
position has been eliminated.” The Respondent’s weekly pay
periods begin on Monday, and Powers had worked only 30
hours by the time of his termination on Wednesday, May 28.
The Respondent, however, paid Powers as if he had worked 50
hours for the week (or 2 more 10-hour days, through Friday,
May 30).
By letter dated May 30, Kozicki demanded that the Respon-
dent recognize the Union as the collective-bargaining represen-
tative of the mechanics.
The General Counsel also called Horton who testified that at
one point during the May 9 meeting between Madias and the
mechanics, Madias told them: “I do not want nobody to leave. I
am not getting rid of nobody, but if you guys need a letter of
recommendation, I will be more than happy to give you one.”
Mullins was the Respondent’s general manager from May
2001 through August 2002. Mullins testified that in May or
June 2002 he met with Foster in Foster’s office. At the time,
according to Mullins, two drivers were giving the Respondent
“trouble” about what the Respondent could and could not do
while the truckdrivers’ contract was still in effect. Mullins testi-
fied that Foster “made the statement . . . that at the end of this
contract with the Teamsters, he would do what it took to get
them out.”5
2. The General Counsel’s evidence—the 8(a)(1) allegations
Horton also testified that about a week or 2 after Powers’
May 28 discharge, Madias approached him in the garage and

He said, “I am not saying it is you. I have no idea who
it is that signed the cards, but I would like it if you called
down there and tell them that you do not want to vote.” ...
I gave him a puzzled look and I said, “What do you
mean, ‘vote’?”
He said, “Mitch Foster called me and told me [that] the
Union wanted to set up a vote . . . [and] that there was go-
ing to be a vote. So, I would appreciate it, if you would
call down to the Union hall and tell them you do not want
to vote.”

Horton further testified that he did not reply to Madias’ request
and that he and Madias went on to talk about other topics. But,
“after that, he had said, ‘I would really appreciate it—make my
job a whole lot easier, if you would call down there and cancel
the vote.’” Horton testified that he again did not reply.
Horton further testified that during the next day at work he
was again approached by Madias and

He came out there and he asked me if I got a hold of
the union steward yet.
And I said, “No. I do not know who to get a hold of.”
He said, “Paul Kozicki.”
I said, “Well, I do not even have the number. Do you
have the number?”
He said, “Yes. I have it, in my office.”
He went into his office [and then returned to the ga-
rage] and handed it to me.
He said, “I would really appreciate it, if you would call
down there.”

Horton identified as a piece of paper that Madias had then
handed to him one that is about 2 by 3 inches. On the paper is
hand-printed “Paul Kozicki” and a telephone number. The
number is that of the Union, as displayed on the letterhead of
Kozicki’s May 30 demand for recognition as well as on the
June 3 petition for election. The paper appears to have been
torn from a business-type memo pad because it has two Michi-
gan business addresses preprinted at the bottom (one in Romu-
lus and one in Bay City). Horton acknowledged that he did not
know who had printed Kozicki’s name and the Union’s tele-
phone number on the paper.
Horton further testified that on the following day Madias
again approached him in the garage and “asked me if I got a
hold of Paul.” Horton replied that he had called Kozicki and
left a message, but Kozicki had not called him back.
Based on this testimony by Horton, the complaint alleges
that, in violation of Section 8(a)(1), the Respondent, by Madias,
coercively: (a) on or about June 10, asked an employee to tell
the Union to withdraw its petition in the representation case; (b)
on or about June 11, interrogated an employee about whether

5 The transcript, p. 159, L. 25, is corrected to change “he would
what” to “he would do what.”
INDUSTRIAL MATERIALS CLEARANCE 625
he had done so; and (c) on or about June 13, again interrogated
and employee about whether he had done so.
At trial, I granted a motion by the General Counsel to amend
the complaint to add an 8(a)(1) allegation that the Respondent,
by its attorney, Thomas F. Campbell, in August, 2003, at the
Respondent’s facility, “interrogated its employees about their
union activities and sympathies.” In support of this allegation,
Horton further testified that shortly before the hearing in this
case, Madias asked him to go into an office to answer a few
questions that the Respondent’s attorney had. Horton agreed
and went into the office. Horton testified that in the office,
when he was alone with Campbell, with the door closed,
Campbell introduced himself and told him some things about
Campbell’s law firm. Campbell then told him that anything that
was said between them was not a secret and that Horton was
free to tell anyone what had been said between them. Then,
according to Horton

He asked me a few questions; if I knew, like how
much money, you know, the Company was making or
spending or anything like that. And I do not know nothing
of that. He asked me if I knew if we were farming out
more work than what we were. I told him, yes, we were.
He asked me if I knew of any management that talked to
any of the employees about the Union.
I told him, “I do not want to talk about that.”
He said, “No problem.”

Campbell did not ask Horton anything else. Horton testified
that the conversation with Campbell had lasted about 5 min-
utes. At trial, Campbell acknowledged that Horton’s testimony
was “a very accurate account” of an event that happened as he
prepared for trial.
The General Counsel also called Messer who testified that,
about a week before the hearing, at Madias’ request, he also
met with Campbell in an office. According to Messer:

He just asked me, did I know the financial end of the
Company and I told him, I did not. [Campbell asked me],
did I know anything, about why Mr. Powers was let go
from the Company. I told him I did not know. He asked
me, was it because of union activities, and I told him, “No,
I do not believe that is . . . ”—I mean, as far as my
knowledge is, the Company has been with the Union since
it has been opened, which is long before I was born. . . .
That was it.
On cross-examination, Messer acknowledged that Campbell
told him during their meeting that their meeting was not privi-
leged and that Messer was free to relay its contents to anyone.
At trial, Campbell did not acknowledge that Messer’ testimony
was accurate, but he did not deny it by his own testimony.
3. Evidence presented by the Respondent
Madias, the Respondent’s only witness, was asked on direct
examination and he testified:

Q. Now, when was the decision made that IMC had to
eliminate the position held by Dave Powers?
A. I had come to that decision, personally, by the end
of April.
Q. Okay.
A. We could no longer afford three people in the ga-
rage.
Q. All right. Well—do you know—speaking generally,
do you know what the average monthly revenue was for
IMC in the calendar year, 2002?
A. A little over $200,000.00, $230,000.00, I believe.

Madias testified that the Respondent’s average monthly reve-
nue during the first 5 months of 2003 was “less than $140,000.”
Madias testified that, beginning shortly after Christmas 2002,
Foster told him repeatedly, “that I should reduce the workforce
in the garage by one. He felt we had one individual too many.”
Madias testified that he repeatedly told Foster to “give me a
little time, to get the feel of what was happening in the garage.”
Madias volunteered that, by this statement to Foster, he meant
that: “I wanted to have a feel for the employees, what their
strengths were, what their weaknesses were, and how they fit
into the organization.”
Madias further testified that, at the end of January or mid-
February, he recommended to Foster that all three mechanics
be retained but that the Respondent cut their hours back to 50
per week. At the time, 150 man-hours per week in the garage
was more than sufficient to do the work that the Respondent
had because the Respondent then had only three or four truck-
drivers working. When Powers complained about not getting
more than 50 hours per week, he discussed with Powers the fact
that Foster was wanting him to cut the mechanics’ workweek
from 50 to 40 hours, and to eliminate a position, probably Hor-
ton’s. (In rebuttal Powers did not deny that this conversation
occurred; he only testified that he could not remember it.)
Further according to Madias, business picked up in the
spring, but the Respondent continued to hold the mechanics to
50 hours per week and started contracting out the remaining
work to J&R Mobile Truck and Trailer Repair (J&R), a firm
that did the work at the Respondent’s premises. According to
Madias, contracting out to J&R had the advantage of a warranty
on each job, and J&R’s prices were much lower than those
quoted by other outside firms.6
Madias further testified that, although he had decided by the
end of April to eliminate Powers’s position, he did not discuss
that decision with Foster until May 27 because: (1) he met with
Foster only on Tuesdays; (2) he took a vacation from May 10–
20; (3) he therefore did not return to work from vacation until
May 21; and (4) the first Tuesday after he returned was May
27. On that date, further according to Madias, he told Foster
that he intended to terminate Powers “the next day.” Madias
further testified that he did not tell Foster before he left on va-
cation that he had decided to terminate Powers because it
would have been unfair to Foster to tell him that he (Madias)
was cutting the garage’s labor force by one-third and then im-
mediately leave on vacation. Madias further testified that, since
Powers was terminated, Horton and Messer are qualified to do
the work “that they’re doing.” And Madias further testified that

6 J&R is owned by one Jeff Messer; the Respondent’s employee Ron
Messer is also an employee of J&R. Jeff Messer and Ron Messer are
brothers, and both are nephews of Powers.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 626
the elimination of Powers’s position, has resulted in “cost sav-
ings to the company.”
The Respondent produced no documentation to support
Madias’ statements about the Respondent’s financial position
or any savings that Powers’s termination may have produced.
Also, the Respondent’s counsel questioned Madias about the
May 9 meeting with Powers, Messer, and Horton, but he did
not ask Madias to deny the testimony of Powers and Horton
that he told the employees that the Respondent did not plan to
lay anyone off.
Madias described the end of his May 28 lunch with Kozicki
as

Paul says, Nick, I want to tell you this. I do not want
you to get blindsided by it but this is what’s happening. I
have had a majority of your people in the garage sign
cards that they want to organize. . . .
I said, “Paul, after lunch, I am going back and I am
eliminating one of the positions. So, how can there be a
majority? There is only going to be two.”
[Kozicki said,] “Well, you have got three.”
I said, “Well, but there is only going to be two. I am
going back after lunch today and I am going to eliminate
one of the positions.”

On cross-examination, Madias denied that Powers was any
more outspoken at the May 9 meeting than Horton. Madias
further denied knowing who the cardsigners were before he
terminated Powers. Madias denied that he ever referred to
Powers as the “lead mechanic,” but he acknowledged that when
scheduling work, “I would work through Dave.” Madias ac-
knowledged that Powers was the most skilled of the three me-
chanics, but he added that “He’s also paid the highest in the
shop.”
Also on cross-examination, Madias was further asked and he
testified

Q. BY MR. KARMOL: And during the week that Dave
Powers was, or the position was eliminated, there were
still a lot of repairs, isn’t that correct?
A. Yes.
Q. So in regards to repairs it’s not a question of
whether or not there was a lack of work, isn’t it? There
was more than enough repairs to be done, isn’t that true?
A. Yes.
Q. And isn’t it true that you released Dave Powers
several hours after finding out the majority of the mechan-
ics had signed cards on Wednesday, May 28th?
A. Yes, it’s a coincidence.

Madias was further asked on cross-examination, and he testi-
fied

Q. BY MR. KARMOL: After Mr. Powers was let go, did
the other two mechanics start working more hours per
week?
A. In relation—but this had no direct relation to Mr.
Powers’ elimination.
JUDGE EVANS: —that’s a simple yes or no question.
Did they start working more hours per week than they had
been previously during 2003?
THE WITNESS: Only for that, since that time period. I
guess the answer is yes, your honor, but I, it —
JUDGE EVANS: —you’ll have, your counsel will have
you on redirect.

On the issue of what Madias said to Horton after the election
petition was filed by the Union, Madias testified that the only
telephone number that he ever used for Kozicki was Kozicki’s
cell phone number, which number is different from the number
that was on the paper that Horton identified as that which was
given to him by Madias. Madias denied writing on the paper, he
denied giving it to Horton, and he denied that he asked Horton
to call the Union and ask that the petition be withdrawn.
B. Analysis and Conclusions
The complaint alleges that the Respondent violated Section
8(a)(3) by discharging Powers on May 28 with the object of
discouraging the union activities of its employees. In order to
establish a prima facie case of such alleged unlawful discrimi-
nation, the General Counsel must persuade the Board that anti-
union sentiment, or animus, was a substantial or motivating
factor in the challenged employer decision. The burden of per-
suasion then shifts to the employer to prove its affirmative de-
fense that it would have taken the same action even if the em-
ployee had not engaged in protected activity. Wright Line, 251
NLRB 1083, 1089 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 455 U.S. 989 (1982), approved in NLRB v. Trans-
portation Management Corp., 462 U.S. 393 (1983).
The Board has held that where adverse action occurs shortly
after an employee has engaged in protected activity, an infer-
ence of unlawful motive is raised. La Gloria Oil, 337 NLRB
1120 (2002), enfd. mem. 71 Fed. Appx. 441 (5th Cir. 2003). In
this case, the timing was immediate; about 12:30 p.m. on May
28, Madias learned that “a majority” of the Respondent’s three
mechanics had signed union authorization cards, and by 3 p.m.,
he had terminated Powers. Without more, therefore, I would
find that the General Counsel has established that the Respon-
dent was motivated by the known union activities of its em-
ployees when it discharged Powers. There is, however, more
evidence of animus. Mullins testified that in 2002 Foster made
the unqualified statement that he would do “what it took” to get
rid of the Union at the end of the truckdrivers’ current contract.
Because the Respondent did not call Foster to testify, that tes-
timony by Mullins was uncontradicted, and I found it credible.
Mullins’s testimony is further evidence that the Respondent is
motivated by antiunion considerations in its dealings with its
employees. As well, I found credible Horton’s testimony that,
shortly after the Respondent’s termination of Powers, Madias
repeatedly asked him to contact Kozicki and ask that the Union
withdraw the petition for the Board election for the mechanics.
In so doing, Madias went so far as to provide the telephone
number of the Union to Horton. Madias denied this testimony,
but Horton is currently employed by the Respondent, and the
Respondent suggests no reason why Horton would lie while he
is subject to retaliation (subtle or blatant).7 I find that Horton

7 In Flexsteel Industries, 316 NLRB 745 (1995), the Board stated
that, although there is no presumption of credibly to be afforded to their
testimony, “the testimony of current employees which contradicts
INDUSTRIAL MATERIALS CLEARANCE 627
was not untruthful; as well as having much to lose by false
testimony, he had a positive demeanor. Moreover, Horton’s
testimony that in June Madias solicited him to prevail upon the
Union to withdraw the petition is logically consistent with
Kozicki’s undisputed testimony that he had to tell Madias on
May 28 that the Union could not delay the filing of the petition
because he had to do what the employees (such as Horton)
wanted. I therefore find and conclude that, as alleged, by
Madias’ solicitations and interrogations of Horton the Respon-
dent violated Section 8(a)(1). I also conclude that this conduct
by Madias is further evidence of the Respondent’s animus to-
ward its employees’ union activities that would support an in-
ference of unlawful discrimination against Powers.
The Respondent contends that, even if its unlawful animus
has been demonstrated, the General Counsel failed to prove that
the Respondent knew of Powers’s union activities. Powers was
the employee who contacted Kozicki of the Union, but, admit-
tedly, there is no direct evidence that Madias (or Foster) knew
of that activity. The issue, therefore, is whether the Respondent
can be charged with knowledge of Powers’s union activities,
even absent direct evidence of such knowledge. I find that it
can, and that it must be.
As the Board stated in Montgomery Ward & Co., 316 NLRB
1248 (1995):

Initially, we agree with the judge that a prerequisite to
establishing that [two named alleged discriminatees] were
wrongfully discharged is finding that the Respondent
knew of their union activities. Mack’s Supermarkets, 288
NLRB 1082, 1101 (1988). This “knowledge” need not be
established directly, however, but may rest on circumstan-
tial evidence from which a reasonable inference of knowl-
edge may be drawn. Greco & Haines, Inc., 306 NLRB 634
(1992); Dr. Frederick Davidowitz, D.D.S., 277 NLRB
1046 (1985); Coca-Cola Bottling Co. of Miami, 237
NLRB 936, 944 (1978). Indeed, the Board has inferred
knowledge based on such circumstantial evidence as: (1)
the timing of the allegedly discriminatory action; (2) the
respondent’s general knowledge of union activities; (3)
animus; and (4) disparate treatment. Greco & Haines, su-
pra; E. Mishan & Sons, 242 NLRB 1344, 1345 (1979);
General Iron Corp., 218 NLRB 770, 778 (1975).

. . . .

The factors on which the Board relies when inferring
knowledge do not exist in isolation, but frequently coexist.
[Footnote omitted.] For example, in BMD Sportswear
Corp., 283 NLRB 142, 142-143 (1987), enfd. 847 F.2d
835 (2d Cir. 1988), the Board reversed the judge and
found that the General Counsel had established that al-
leged discriminatees were unlawfully laid off, even in the
absence of direct evidence that the employer knew of their
union activities. There the respondent had demonstrated
antiunion animus, discriminated against other employees,
proffered unsubstantiated reasons for the layoffs, and the

statements of their supervisors is likely to be particularly reliable be-
cause these witnesses are testifying adversely to their pecuniary inter-
ests.”
layoffs were proximate to the start of the union organizing
campaign. See also Active Transportation, 296 NLRB
431, 432 (1989), enfd. 924 F.2d 1057 (6th Cir. 1991).

Although no other employees (in this three-employee unit)
have been shown to have been unlawfully discriminated
against, I find that Montgomery Ward applies because of the
following factors: (1) the permanent layoff of Powers came,
again, within hours of the Respondent’s first proven knowledge
of the Union’s organizing campaign; (2) the Respondent’s ani-
mus is independently demonstrated by Madias’ coercive at-
tempts to get Horton to get the Union to withdraw the petition
and by Foster’ unqualified statement to Mullins that he would
do whatever it took to rid the Respondent of the Union after the
truckdrivers’ contract ran out; and (3) the Respondent has of-
fered only “unsubstantiated reasons” for the layoff.
Madias testified that he decided to terminate Powers because
“We could no longer afford three people in the garage.” This
reason was unsubstantiated because the Respondent offered as
its support only Madias’ bare testimony that “[o]ur average
[revenue] for the first five months of the year was less than
$140,000.00” and that “speaking generally,” the Respondent’s
average monthly revenue for the entire year of 2002 was, “[a]
little over $200,000.00, $230,000.00, I believe.” The Respon-
dent offered no testimony or documentary evidence about what
the Respondent’s revenues for the first 5 months of 2002 were.
This is critical because the Respondent’s business picks up
substantially as the weather gets warmer, and, even accepting
Madias’ “speaking generally” testimony, there is no cogent way
to compare the Respondent’s economic situation during the
first months of 2003 with those of 2002. Moreover, and again
accepting Madias’ oral representations about the Respondent’s
revenues during the first 5 months of 2003, Madias testified
that he decided to terminate Powers “by the end of April.”
Therefore, even accepting Madias’ testimony, the month after
the alleged decision could have been particularly bad for re-
ceipts, which would have skewed any fair comparison of the
figures. (At another point, Madias testified that the Respon-
dent’s customers were chronically slow in paying; such slow-
ness could have made May a particularly bad month for reve-
nues.) Therefore, even if Madias’ vague (“speaking generally,”
and “I believe”) testimony is accepted, is not a substantiation of
the reasons advanced for the Respondent’s actions.
Moreover, Madias’ unsupported testimony of the Respon-
dent’s financial condition cannot be accepted on any account.
Madias’ testimony was offered as a representation of the Re-
spondent’s financial records. Madias, however, is not the Re-
spondent’s comptroller; it was stipulated that one Greg Van
Dorn is the Respondent’s comptroller. The Respondent offered
neither the records themselves nor the testimony of Van Dorn
to substantiate its professed financial distress during the first 5
(or 4) months of 2003. I draw an adverse inferences against the
Respondent both for its failure to present the records that pur-
portedly would have substantiated its professed reasons for the
termination of Powers8 and for its failure, at least, to present
8 See Electrical Construction & Maintenance, 307 NLRB 1247
(1992) (violative layoff found where the Employer claimed diminished
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 628
Van Dorn.9 As well, I draw an adverse inference against the
Respondent for its failure to present Foster who, according to
Madias, told him as early as January to lay off one of the three
mechanics. If there had been any truth to that testimony, the
Respondent assuredly would have called Foster to so testify.10
Additionally, Madias acknowledged that the Respondent
continued subcontracting work and continued working the re-
maining mechanics, Horton and Messer, more overtime after
the termination of Powers. If, as Madias suggested (but did not
directly testify), there was no increase in the amount of subcon-
tracting to compensate for the absence of Powers, the Respon-
dent presumably had the records to prove it. And if, as Madias
further suggested (but also did not directly testify) the addi-
tional hours of Horton and Messer would not have justified a
third employee in the garage, the Respondent presumably
would have had the records to prove that also.11 And if, as
Madias also suggested (but also did not testify), the Respondent
could do the garage’s work cheaper by subcontracting and hav-
ing Messer and Horton work more overtime, the Respondent
presumably would have had the records to prove it. But the
Respondent did not produce any such records, and its failure to
do so fortifies my conclusion that the Respondent’s theory of
economic justification for the layoff of any employee was sim-
ply unsubstantiated.
Therefore, in view of (a) the Respondent’s demonstrated
animus; (b) the immediate temporal proximity of the Respon-
dent’s general knowledge of the organizational attempt and its
termination of Powers; and (c) the unsubstantiated nature of the
Respondent’s proffered reasons for the termination of Powers, I
find and conclude that Madias did know that it was Powers who
had initially contacted the Union and started the organizational
attempt among its mechanics. Montgomery Ward & Co., supra,
and cases cited therein.12
Because the elements of knowledge and animus have been
established, I conclude that the General Counsel has established
a prima facie case that Powers was discharged in violation of
Section 8(a)(3), and the burden under Wright Line was on the
Respondent to demonstrate by a preponderance of the evidence

revenues but offered no documentary evidence “to support its bare
claims at the hearing.”).
9 See Property Resources Corp., 285 NLRB 1105, 1105 fn. 2 (1987),
enfd. 863 F.2d 964 (D.C. Cir. 1988), where the Board explained that:
An adverse inference is properly drawn regarding any matter
about which a witness is likely to have knowledge if a party fails to
call that witness to support its position and the witness may reasona-
bly be assumed to be favorably disposed to the party.
10 Id.
11 Madias testified that the three mechanics began working 50 hours
per week during the cold months of January and February. Logically, as
the work increased with the warmth of spring, more man-hours would
have been required.
12 It is also to be noted that Madias admitted that, when Kozicki told
him that the Union had received authorization cards from a majority of
the Respondent’s three mechanics, he asked how that could be because
he intended to discharge one of them. Evidently Madias knew that the
employee whom he then determined to discharge had signed one of
them.
that it would have discharged him even absent his union activi-
ties.13
Of course, the greater includes the lesser—the Respondent
has failed to demonstrate that it would have terminated the
employment of any mechanic when it discharged (or perma-
nently laid off, or otherwise terminated) Powers; therefore, the
Respondent has failed to demonstrate that it would have laid off
Powers. Accordingly, a finding of a violation under Wright
Line, without further analysis, is compelled.14 But, assuming
arguendo that the Respondent has demonstrated that it would
have terminated some mechanic on May 28, it has not demon-
strated that it would have selected Powers.
That an employer would select for layoff its employee who
is its least skilled is a proposition that bears obvious logic.
Conversely, the proposition that an employer would select for
layoff its employee who is the most skilled bears obvious il-
logic. When asked if Powers were not the most skilled of the
Respondent’s mechanics, Madias agreed, but added that Powers
was “paid the highest in the shop.” Madias, however, never
testified that he selected Powers because he was the highest
paid; in fact, Madias never testified to any reason that he se-
lected Powers, over Messer and Horton, for layoff. But even if
the Board accepts Madias’ reference to wage differences as the
Respondent’s statement of a defense, that defense self-destructs
with its palpable illogic.
At the time of his termination, Powers was paid $16 per
hour; Messer and Horton were paid $15 and $14.75 per hour,
respectively. Based on the 50-hour week that the employees
were working, the Respondent saved itself $50 per week by
choosing Powers rather than Messer for layoff, or it saved itself
$62.50 per week by choosing Powers rather than Horton. It is
unlikely to the point of disbelief that the success of Respon-
dent’s business depended on these marginal savings, which
savings would necessarily be reduced by expenses incurred by
the loss of the Respondent’s lead, and most experienced, me-
chanic.15 Therefore, the Respondent’s professed reason for
selecting Powers for layoff is a mere sham that must be rejected
under Wright Line.
An obvious part of the Respondent’s sham defense is
Madias’ testimony that he told Foster on May 27 that he in-
tended to terminate Powers “the next day,” Wednesday, May
28. This self-serving, unsupported testimony raises the immedi-
ate question of why Madias did not tell Foster that he was ter-
minating Powers that very day if it was so important economi-
cally that the Respondent be rid of Powers before the end of the
pay period on Friday. After all, the Respondent was paying
Powers as if he worked until Friday, and its failure to work him
until Friday bespeaks of motive of revenge or preemption, not
economics or any other legitimate consideration.
13 Wright Line, supra, and Briar Crest Nursing Home, 333 NLRB
935, 936 (2001).
14 My conclusion that the Respondent did not demonstrate any le-
gitimate need for laying off any employees is fortified by the undis-
puted testimony of Powers and Horton that on May 9 Madias told the
mechanics that the Respondent was not planning a layoff and that the
Respondent did not want any of the mechanics to leave.
15 The Respondent did not suggest any other way that it was trying to
cut costs at the time that it discharged Powers.
INDUSTRIAL MATERIALS CLEARANCE 629
Moreover, evidence that the Respondent has offered only a
sham defense to the General Counsel’s prima facie case is
found in Madias’ own hand. On March 7, Madias wrote that
Powers was the Respondent’s “Shop Foreman” who had a
“Probability of Continued Employment” that was “Very
High/Excellent.” Yet, Madias testified that he decided to termi-
nate Powers “by the end of April.” The Respondent, however,
offered no evidence of how, or why, Madias’ opinion of Pow-
ers degenerated in the short period of 2 months. (Tellingly, the
Respondent on brief does not even mention Madias’ March 7
statement to the loan company.)
Finally, as well as his writing, Madias’ testimony reveals that
neither wage-savings nor any other legitimate consideration
was the reason for discharging Powers. Madias testified that
Foster told him as early as January to discharge one mechanic.
Madias did not testify that he needed from January until May to
find out which mechanic was making the greatest wage rate.
Rather, Madias testified that he delayed until May because he
wanted to get “a feel for the employees, what their strengths
were, what their weaknesses were, and how they fit into the
organization.” Yet the Respondent would have the Board be-
lieve that, without unlawful motive, he chose for layoff the
employee who had exhibited the greatest “strengths,” and who
was the employee who “fit into the organization” as lead em-
ployee (or “Foreman” as Madias described Powers to the loan
company). This is too much to believe, and I do not.
Therefore, I necessarily conclude that the Respondent has
failed to demonstrate by a preponderance of the evidence that it
would have discharged Powers even absent his known (or sus-
pected) support for the Union. Accordingly, I find and conclude
that the Respondent discharged Powers in violation of Section
8(a)(3).
As well, I find and conclude that the Respondent, by Camp-
bell, unlawfully interrogated Messer and Horton by failing to
advise them that the purpose of his questioning was preparation
for an unfair labor practice hearing before the Board, by failing
to assure them that their cooperation with his pretrial investiga-
tion was voluntary, and by failing to assure them that no repri-
sals would be taken against them if they declined to answer his
questions.16
THE REMEDY
Having found that the Respondent unlawfully discharged
Powers and committed other unlawful actions, I shall order it to
take certain additional affirmative actions designed to remedy
the violations and effectuate the policies of the Act. Specifi-
cally, I shall order the Respondent to offer Powers full rein-
statement to his former job and to make him whole for any loss
of earnings or other benefits that he has suffered as a result of
the discrimination against him. Backpay shall be computed in
accordance with F. W. Woolworth Co., 90 NLRB 289 (1950),
with interest as prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987). The Respondent shall also be required
to remove from its files any and all references to Powers’

16 See Johnnie's Poultry Co., 146 NLRB 770 (1964), enf. denied on
other grounds 344 F.2d 617 (8th Cir. 1965), and Bill Scott Oldsmobile,
282 NLRB 1073 (1987).
unlawful discharge and to notify Powers in writing that this has
been done.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended17
ORDER
The National Labor Relations Board orders that the Respon-
dent, Industrial Materials Clearance, Inc., of Romulus, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Asking any employee to tell the Union to withdraw a pe-
tition for election that it has filed with the Board.
(b) Interrogating any employee about whether he or she has
complied with its request that the employee tell the Union to
withdraw a petition for election that it has filed with the Board.
(c) Interrogating employees about events that are the subject
of unfair labor practice proceedings without advising such em-
ployees truthfully that the purpose of any such interrogation is
preparation for an unfair labor practice hearing before the
Board, or without giving such employees assurances that their
participation in any such interrogation is voluntary, or without
giving such employees assurances that no reprisals will be
taken against them if they decline to answer its questions.
(d) Discharging or otherwise discriminating against its em-
ployees because of their protected activities on behalf of the
Union.
(e) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of rights guaranteed them
by Section 7 of the Act.
2. Take the following affirmative actions that are necessary
to effectuate the policies of the Act.
(a) Within 14 days from the date of this Order, offer to David
Powers full reinstatement 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 that
he previously enjoyed.
(b) Make David Powers whole for any loss of earnings or
other employment benefits that he suffered as a result of the
discrimination against him, in the manner set forth in the rem-
edy section of this decision.
(c) Within 14 days from the date of this Order, remove from
its files any references to David Powers’ unlawful discharge,
and within 3 days thereafter notify him in writing that this has
been done and that evidence of the discharge will not be used
against him in any way.
(d) Preserve and, within 14 days of a request, or such addi-
tional time as the Regional Director may allow for good cause
shown, provide at a reasonable place designated by the Board
or its agents, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all other
records, including an electronic copy of such records if stored
in electronic form, necessary to analyze the amount of backpay
due under the terms of this Order.
17 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 630
(e) Within 14 days after service by the Region, post at its fa-
cility in Romulus, Michigan, copies of the attached notice
marked “Appendix.”18 Copies of the notice, on forms provided
by the Regional Director for Region 7, 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 28, 2003, the date of the first unfair labor
practice found herein.
(f) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent had taken to comply.
The Representation Case
Because I have found that Powers was discharged in viola-
tion of Section 8(a)(3) and (1) of the Act, I overrule the chal-
lenge to his ballot in the representation case. Case 7–RC–22490
is therefore severed and remanded to the Regional Director to
open and count Powers’ ballot and to prepare and serve on the
parties a revised tally of ballots and issue the appropriate certi-
fication.
APPENDIX

NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

18 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.
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this no-
tice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities.

WE WILL NOT discharge you, or otherwise discriminate
against you, because of your membership in, or activities on
behalf of, Local 247, International Brotherhood of Teamsters,
AFL–CIO (the Union).
WE WILL NOT ask you to tell the Union to withdraw a petition
for election that it has filed with the Board.
WE WILL NOT interrogate you about whether you have com-
plied with any request that you tell the Union to withdraw a
petition for election that it has filed with the Board.
WE WILL NOT question you about events that are the subject
of unfair labor practice proceedings without advising you truth-
fully that the purpose of our questioning is preparation for an
unfair labor practice hearing before the Board, without giving
you assurances that your participation in any such interrogation
is voluntary, or without giving you assurances that no reprisals
will be taken against you if you decline to answer our ques-
tions.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed to
you by Section 7 of the Act.
WE WILL, within 14 days of the Board’s Order, offer David
Powers immediate reinstatement 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 previ-
ously enjoyed and WE WILL make him whole for any loss of
earnings and other benefits resulting from our discrimination
against him, less any net interim earnings, plus interest.
WE WILL, within 14 days of the Board’s Order, remove from
our files any reference to the May 28, 2003 discharge of David
Powers, and WE WILL, within 3 days thereafter, notify him in
writing that this has been done and that the discharge will not
be used against him in any way.

INDUSTRIAL MATERIALS CLEARANCE, INC.